Free Transcript - District Court of Delaware - Delaware

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IN THE UNITED STATES DISTRICT COURT IN AND FOR THE DISTRICT OF DELAWARE - - -

UNITED STATES OF AMERICA, 5 Plaintiff, 6 vs. 7 CHRISTOPHER EWELL, 8 Defendant. 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 APPEARANCES: BEFORE:

: : : : : : : : :

CRIMINAL ACTION

NO. 07-169 (SLR)

- - Wilmington, Delaware Wednesday, May 21, 2008 11:15 o'clock, a.m. - - HONORABLE SUE L. ROBINSON, U.S.D.C.J. - - -

ILANA H. EISENSTEIN, ESQ., Assistant United States Attorney

Counsel for Plaintiff

ELENI KOUSOULIS, ESQ., Assistant Federal Public Defender

Counsel for Defendant

Valerie J. Gunning Official Court Reporter

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P R O C E E D I N G S

(Proceedings commenced in the courtroom, beginning at 11:15 a.m.)

MS. EISENSTEIN: THE COURT:

Good afternoon, your Honor.

Good morning. Ilana Eisenstein, on behalf of

MS. EISENSTEIN: the United States.

Your Honor, now is the time this Court has set for a continuation of the suppression hearing in the matter of United States of America versus Christopher Ewell, Criminal Action No. 07-169 (SLR). The defendant is present

in the courtroom with his counsel, Ms. Kousoulis. Your Honor, as the parties explained to your clerk, we have had some confusion and difficulty bringing the drug evidence here to court. It is on its way and we

expect will be here in the next five minutes or so, and in the meantime, the purpose of this hearing was for the defense to be able to present some expert testimony with regard to whether or not such drug evidence could emit noticeable odors, as I understand the purpose, and so the government would like, if the Court wants to proceed this way, to have an opportunity to hear the voir dire of the defense witness and have an opportunity to voir dire that

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witness by the government.

And then the witness, I believe,

would need an opportunity to review the drug evidence, which should hopefully be here momentarily. THE COURT: Okay. Or is here.

MS. EISENSTEIN: THE COURT:

So the only question is, since the

drugs are here, that we start now or we allow whatever has to be done so that the witness gets on the stand, we go through the examination without interruption. MS. EISENSTEIN: Yes, your Honor. I don't

believe the defense has an objection. The government would like the opportunity to recall Officer Brian Conkey, who is here in the courtroom, to identify the drugs and explain the condition that they're in currently versus the condition that they may have been in at the time that he seized the drugs. THE COURT: All right. So we could proceed with that

MS. EISENSTEIN: right now. MS. KOUSOULIS: objection to that.

And, your Honor, I have no

I may also have a couple of questions

for, additional questions for Officer Conkey. THE COURT: So is it the position of counsel

that we should recall Officer Conkey, take care of that preliminary matter, take a break and let the expert do what

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Conkey - direct 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 witness? THE COURT: Yes, you may. Thank you. BY MS. EISENSTEIN: Q. A. Good afternoon, Officer. Good afternoon. MS. EISENSTEIN: Your Honor, may I approach the the expert is going to do and then reconvene at some stated hour? I think I have back-to-back proceedings starting at

2:00, so I need to make sure that we get done that. MS. KOUSOULIS: Your Honor, it shouldn't take

more than five minutes for my expert to look at the drug evidence and talk to him for a few minutes. I wanted the

opportunity to see the evidence before he testified. THE COURT: Officer Conkey. MS. EISENSTEIN: THE COURT: Thank you, your Honor. All right. Why don't we recall

And since it has been so long, we

might administer the oath to you again, sir. PLAINTIFF'S TESTIMONY ... BRIAN E. CONKEY, having been duly sworn as a witness, was examined and testified as further ... DIRECT EXAMINATION

MS. EISENSTEIN: BY MS. EISENSTEIN:

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Conkey - direct 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 Q. I'm showing what has been marked as Exhibit 1A to

defense counsel, for the record (handing exhibit to the witness). Officer, could you open that envelope, please, for the Court and examine the contents? (Pause.) BY MS. EISENSTEIN: Q. A. And can you explain to the Court what that is? It's four zip-lock baggies containing a green-like

substance, tan-like substance. Q. And do you recall seizing or testifying to the fact

that you seized drug evidence from Christopher Ewell on the night of November, on the day of November 26th, 2007? A. Q. Yes. And do you recall the appearance of the marijuana

evidence that you seized or something that appeared to be marijuana evidence on that day? A. Q. Yes. And can you compare for the Court how the marijuana

evidence packaged here today compares with the evidence on that day, November 26th, 2007? A. Yes. It has the same, like, four yellow zip-lock

baggies containing a plant-like substance. Q. On that day is it correct you previously testified

that these four yellow baggies were also contained in a

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Conkey - direct 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 sandwich bag? A. Q. Yes. And is the sandwich bag contained in that yellow

envelope that you opened earlier? A. Q. I don't see it in here. Okay. And can you describe, is that just a standard

sandwich bag that one would purchase in the store or is it something different? A. Q. Yes. Now, what about, do you notice any odor currently

emanating from this substance here? A. Q. Yes. And can you describe what kind of odor is emanating

right now from the substance? A. Q. It's unlit marijuana. Can you compare the, both the strength and the type of

odor as you observe it right now compared with the type of odor that you smelled on the day of November 26th, 2007, from the defendant's car? A. It's the same odor, especially since with the heat

coming out of the vehicle, the heat was stronger than it is today. Q. as? A. To my knowledge, my experience on the street, these And what kind of baggies would you describe these

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Conkey - cross 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 BY MS. KOUSOULIS: Q. Officer Conkey, do you recall testifying in this further. THE COURT: All right. Cross. May I just are packaged for sale. Q. Now, I mean, are they zip-lock bags or some other kind

of bags? A. Q. A. Q. A. Yes. Zip-lock bags.

Would you describe these as heat-sealed? No. And on the day in question, were the bags heat-sealed? No. MS. EISENSTEIN: Thank you, your Honor. Nothing

MS. KOUSOULIS: have one moment, your Honor? THE COURT: (Pause.)

Yes, your Honor.

Yes.

CROSS-EXAMINATION

matter on March 18th, 2007? A. Q. Yes. And on that day, you testified that they were Do you

heat-sealed bags, not just zip-lock backs; correct? recall? A. Q. Not to my knowledge.

Do you recall being asked the question, And they were

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Conkey - cross 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 A. Q. all heat-sealed bags; is that correct? And you answered, Correct? Not to my knowledge. But your testimony today is that they weren't Is that your testimony? They were just

heat-sealed.

zip-lock bags? A. Q. Correct. Now, you testified that here in court, as you hold

those bags, that you notice an odor of marijuana? A. Q. Not as strong as that day. But your testimony was on direct that you smelled

marijuana; correct? A. Q. bags? A. Q. Yes. And it's fair to say that since the time when you Yes. And that you currently smell marijuana coming from the

recovered those bags from the jacket pocket, which was Defense Exhibit 2, that those bags have been opened and tested; correct? A. Q. To my knowledge, yes. So if those bags had been heat-sealed, as you

testified to back on March 18th, at some point between March 18th and today, they were open in order to be tested; correct?

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Conkey - cross 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 A. Q. A. Q. Seems like one bag. Was open? Yes. Now, are you aware of a letter sent to me by Assistant

United States Attorney Ilana Eisenstein regarding the case of United States versus Ivan Jackson? A. Q. Yes. And you testified in an evidentiary hearing for -- in

the case of United States versus Ivan Jackson, in federal court, in front of Chief Judge Sleet; correct? A. Q. Correct. And are you aware that Chief Judge Sleet, in granting

the defendant's motion to suppress evidence in that case, determined that your testimony was not credible? MS. EISENSTEIN: impeaching the witness. Objection, your Honor. That's

Under Federal Rule of Evidence

608(b), there's no extrinsic evidence permitted in that. MS. KOUSOULIS: Your Honor, the Seventh Circuit,

in the case of United States versus Dawson, and I do have a copy of the case for the Court, found that whether to allow a witness to be cross-examined about a prior initial determination finding him not to be credible is confined to the discretion of the trial judge and it does not fall under that rule and it is permissible because extrinsic evidence is not being used. A question is simply being asked of the

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Conkey - cross 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 question. exhibit. BY MS. KOUSOULIS: Q. Are you aware that Chief Judge Sleet, in granting witness. And I can pass that case up. THE COURT: Well -And --

MS. KOUSOULIS: THE COURT:

I'm not confident that that is

particularly compelling evidence, but I will let you ask the question. MS. KOUSOULIS: Your Honor, I would also like to

mark that case of United States versus Ivan Jackson into evidence. I believe that it goes to the officer's, the fact

that he may have been found not credible in another case by another judge would go to this officer's credibility. THE COURT: I said I would let you ask the

I'm not going to let you have that as an

the defendant's motion to suppress evidence in that case, determined that your testimony was not credible? A. Yes, I know it was suppressed, but I didn't know the

reason why. MS. KOUSOULIS: THE COURT: I have no further questions. Any redirect?

All right.

MS. EISENSTEIN:

Briefly, your Honor.

I'm showing defense counsel the transcript of

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Conkey - redirect 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 momentarily? THE COURT: Yes, although this might -- I'm not your Honor? THE COURT: Yes. May I direct from here just BY MS. EISENSTEIN: Q. Turning to Page 14 of that -MS. EISENSTEIN: May I approach the witness, the original suppression hearing, dated March 18th, 2007, which I've marked just for identification as Government Exhibit B. REDIRECT EXAMINATION

MS. EISENSTEIN:

sure what you are doing, so this might change my decision on what Ms. Kousoulis asked me to do. see. BY MS. EISENSTEIN: Q. Just reading Page 4, describing for the Court how But go ahead and we'll

those bags, the questions, can you describe for the Court how those bags were packaged? A. It says, "They were all packaged in small zip-lock

bags, packaged for sale." Q. A. And -"Were the four zip-lock bags loose or were they in

large bags? "They were in a sandwich bag."

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Conkey - redirect 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 Thank you. (Witness excused.) THE COURT: at this point? MS. KOUSOULIS: just five minutes. THE COURT: Well, we're going to take it for 15. Yes, your Honor, if we may, for All right. Are we talking a break witness? MS. KOUSOULIS: THE COURT: No, your Honor. You may step down. evidence.) MS. EISENSTEIN: nothing further. THE COURT: All right. Anything further of this Your Honor, the government has THE COURT: That's from this hearing? Yes, your Honor. I'm sorry.

MS. EISENSTEIN: THE COURT:

Okay.

MS. EISENSTEIN:

And, your Honor, I believe I

failed to do this, just on the initial, but the government would formally move for the admission of Government's Exhibit 1A, which would be the drug evidence, into evidence. MS. KOUSOULIS: THE COURT: No objection. Thank you.

All right.

(Government Exhibit 1A was received into

All right.

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Conkey - direct 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 BY MS. KOUSOULIS: Q. A. Q. Morning, Officer Conkey. Good morning. Officer Conkey, you testified that the four little A five-minute break is hardly worth my time. (Witness excused.) (Short recess taken.) -

(Proceedings resumed after the short recess.) THE COURT: Ms. Kousoulis? Yes. Your Honor, if I could

MS. KOUSOULIS:

briefly recall Officer Conkey, just to introduce some pictures? THE COURT: All right. And we will not

re-administer the oath at this time. MS. KOUSOULIS: THE COURT: is under oath. DEFENDANT'S TESTIMONY ... BRIAN CONKEY, having been previously duly sworn as a witness, was examined and testified follows as follows ... DIRECT EXAMINATION That's fine.

I will just remind him that he still

bags of marijuana that were marked as Government Exhibit 1A were found in another plastic -- inside a plastic sandwich

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Conkey - direct 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 bag inside the pocket of the jacket that was in the car; correct? A. Q. Correct. I'm showing you what has been marked -MS. KOUSOULIS: THE COURT: BY MS. KOUSOULIS: Q. I'm showing you what has been marked as Defense May I approach the witness?

Yes, you may.

Exhibit 4 for identification purposes (handing exhibit to the witness). Is that a picture of the plastic bag that contains the four smaller bags of marijuana in it? A. Q. Yes. And the plastic bag that is depicted in Defense

Exhibit 4, is that the same plastic bag that the drugs, the four little bags of drugs were found in inside the pocket? A. Q. Yes. And this bag, this bigger plastic bag, was not with

the drugs when you just -- the drugs that you were just shown on direct that was Government Exhibit 1A; is that correct? A. Q. A. Correct. Do you know what happened to that plastic bag? No, I do not.

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Conkey - direct 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 Q. And just showing you briefly what has been marked

Defense Exhibit 5 for identification purposes, is this a picture of the jacket where you found that bag with the drugs in it? A. Correct. MS. KOUSOULIS: Your Honor, I would move the

admission of Defense Exhibit 4 and 5 into the record. MS. EISENSTEIN: THE COURT: No objection, your Honor. Thank you.

All right.

MS. KOUSOULIS:

And I have no further questions.

(Defendant's Exhibit No. 4 and Defendant's Exhibit No. 5 were received into evidence.) THE COURT: this witness? MS. EISENSTEIN: THE COURT: Nothing further, your Honor. All right. Any other questions of

All right.

(Witness excused.) MS. EISENSTEIN: At this time, the government

would ask that Officer Conkey be dismissed. MS. KOUSOULIS: THE COURT: That's fine, your Honor. Thank you very much.

All right.

And, Ms. Kousoulis? MS. KOUSOULIS: Your Honor, at this time, the

defense would call Dr. Stephen Duerr. THE COURT: All right.

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1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 witness?

(Witness excused.) ... J. STEPHEN DUERR, having been duly sworn as a witness, was examined and testified as follows ... DIRECT EXAMINATION BY MS. KOUSOULIS: Q. A. Good morning, Dr. Duerr. Good morning. MS. KOUSOULIS: Your Honor, may I approach the

THE COURT: BY MS. KOUSOULIS: Q.

You certainly may.

Dr. Duerr, showing you what has been marked Defense

Exhibit 3 for identification purposes (handing exhibit to the witness), is that your curriculum vitae? A. Q. Yes. And could you give the Court a brief background of

your training and experience -- education and experience in the field of forensic chemistry? A. My education includes three degrees: Bachelor's,

Master's and Doctorate in Metallurgy.

At the time I got my

education in metallurgy, that was the name of the program. It shortly after that became Material Science. The courses I took were in metals, but also in ceramics and plastics and other materials. Included a lot

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of chemistry, physical chemistry, analytical chemistry. The -- my experience in the workplace for the last 30 years has been in independent laboratories, working basically as a chemist. I have a certification that is I'm registered in

called Certified Professional Chemist.

the State of New Jersey as a Professional Engineer. The -- my forensics experience has extended over 20 years, with analyses related to arson, analyses related to controlled substances. court testimony. Q. A. And where are you currently employed? The current name of the company is Libra, L-i-b-r-a, Before that, it was Metuchen And some of that has ended up in

Libra Technical Center. Analytical. 20 years. Q.

That has been where I've worked, well, for

And what are some of your daily activities with regard

to your job? A. We analyze food, drugs, cosmetics, primarily for the We analyze

manufacture -- manufacturers of those products. for purity, strength.

We analyze the packaging and the effect of the packaging on the -- on the -- on the material, the food or the drug, actually, or the cosmetics, how the packaging allows that product to retain its -- its properties, either the active drug strength or the -- or the appearance or the

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odor or whatever of properties are important for the particular product. Q. So do you have experience in analyzing controlled

substances specifically and their properties? A. Q. A. Yes, I do. And can you describe your experience? Well, for 20 years, at various points in time,

either -- either the -- well, either the DEA or the police have -- police detectives have brought evidence to my laboratory, or in some cases, I have gone to the police laboratory, and in both cases, I would weigh the evidence material, the cocaine or the heroin or the marijuana, the weight being an important part of the case. I would weigh

it and then I would also take a portion and analyze it for its -- for the identification and usually strength of the -of the drug that was in that evidence. Q. A. And how would you conduct that type of analysis? Well, for -- for cocaine and heroin, the analysis is For marijuana, the analysis is by

by gastroentography. microscopy. Q.

And what does that mean?

If you can explain it in

layman's terms. A. Marijuana is -- is made from plant material, and the

characteristics -- the appearance of the plant material under a microscope has -- has certain features that are

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characteristic of marijuana. Q. And are you familiar with the properties of marijuana

and what it is in marijuana chemically that accounts for its odor? A. Q. A. Yes. And what is that? Well, the -- well, the -- the component, the THC, the

chemical compound that is the active ingredient in marijuana that gives the person the effect is one portion of that, but any -- any of the volatile materials that are in the plant contribute to the odor. Volatile just means that the solid

or liquid material that's within the plant material becomes vapor, becomes gas, and goes into the air, and we can then smell it with our nose. Q. Have you ever been qualified as an expert in forensic

chemistry in analyzing chemical properties of controlled substances in federal court before? A. Yes. MS. KOUSOULIS: Your Honor, at this time I would

like to offer Dr. Duerr as an expert in forensic chemistry, knowledgeable in analyzing controlled substances and in the properties of controlled substances, including marijuana. MS. EISENSTEIN: Your Honor, the government

would like a couple of questions to voir dire the witness

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before. THE COURT: All right. Before I forget, I would just

MS. KOUSOULIS:

move Defense Exhibit 3 into evidence. MS. EISENSTEIN: MS. KOUSOULIS: THE COURT: No objection. The C.V.

All right. Thank you.

MS. KOUSOULIS:

(Defendant's Exhibit No. 3 was received into evidence.) BY MS. EISENSTEIN: Q. Dr. Duerr, good afternoon. Almost afternoon. Good

morning. In terms of your training and experience, you spoke of analyzing generally the properties of controlled substances. What about specifically the smell of controlled substances? What is your experience with regard to how

controlled substances smell? A. In -- in every case that I've analyzed, I've been

presented with the evidence in some sort of an evidence envelope or in some other way of storage, so I've had the opportunity to -- to detect or not detect the odor of all of the substances that I've examined. Q. Have you personally reviewed any studies that assess

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the ability of people in general to smell controlled substances, specifically marijuana? A. I have not reviewed such studies, no. I know I can

smell marijuana. Q. So would your testimony then today be based solely on

your own ability or experience in detecting the smell of marijuana? A. Well, it's based on that as well as the -- the

material's properties of marijuana and other controlled substances. MS. EISENSTEIN: THE COURT: Nothing further, your Honor. Anything further?

All right. No.

MS. KOUSOULIS:

At this time I would offer

Dr. Duerr as an expert in forensic chemistry, knowledgeable in analyzing controlled substances and in the properties of controlled substances, including marijuana. THE COURT: from the government? MS. EISENSTEIN: THE COURT: BY MS. KOUSOULIS: Q. Dr. Duerr, in this case, did you have the opportunity No, your Honor. All right. Is there an objection

All right.

to look at four small bags of marijuana that was marked Government Exhibit 1A? A. Yes.

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Q.

And these four small bags were contained in another Were you aware

plastic bag that was inside a jacket pocket. of that? A. Q. Yes. I've been told that.

And did you have the ability to look at the jacket,

which was marked Defense Exhibit 2? A. Q. Yes. And under these circumstances of the four bags, small

bags of marijuana inside another plastic sandwich bag inside the jacket pocket that you looked at, based on your experience and education, what is your opinion as to whether or not the four heat-sealed bags recovered by the police in this case would have a noticeable odor? A. odor. Q. A. And on what do you base your opinion? Based on I don't smell a noticeable odor right now, There was no I do not believe they would have had a noticeable

and there's -- they were in sealed bags.

reason for this to be an increased odor under the circumstances that I've heard. Q. Now, would the amount of the marijuana that was

recovered affect your opinion? A. The amount does affect the -- the total amount of

marijuana does affect the total -- the amount of the odor that one would notice, would smell.

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1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 correct? A. Q. Yes.

This is a very small quantity of marijuana, so the odor associated with it would be -- would be small as well. Q. So is it fair to say that the larger quantity of

marijuana, the more smell it would potentially give off? A. Q. A. Q. Yes. And what accounts for the smell in marijuana? Well, it's really whatever -Strike that. The marijuana in this case was unused marijuana;

And what accounts for the smell in unused marijuana?

What chemical properties are responsible for giving off an odor? A. Well, there are chemical compounds in the plant,

some of which -- well, there's a range of chemical compounds in the plant, and they have a range of volatility, so the more volatile, the ones that give off more odor, dry first. So the plant material, of course, the -- the volatile material that is there in the plant in the highest concentration is water. So to get -- to get the marijuana from the plant form to the -- to the dried powder kind of form that is in

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those bags, it has to be dry, so that the drying process evaporates the water. At the same time, it evaporates the

more volatile portions of the -- of the plant material. So what's left in that dried powder is the least volatile compounds that are present in the plant. Q. So as the least volatile compounds, is it fair to say

that that portion left in the bags gives off the least amount of odor? A. Correct. It's like the -- it's like the -- like a You -- you pick It has a

mint plant that you grow in your garden.

the mint leaf and you crush it and you smell it. strong odor.

But after it is dried in the -- on the

counter, it does not have that odor. So you -- if you want to make a -- whatever, a Mint Julep, you use the very fresh mint leaves that have the strongest odors. Q. Now, what happens if you put marijuana that has been

freshly cut from the plant in a plastic bag? A. Well, if you literally took the plant material, put

it in a plastic bag, it would grow mold, because the -- the water, the moisture in the plant, would support the growth of the mold. Q. So you can't do that.

Now, what effect -- there was testimony in this case

that there was heat coming from the car from the heater, and that that may have had an effect.

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What effect, if any, in your opinion, would heat coming from the car have on the marijuana and whether or not it would give off an odor because of its contact with the heat in the car? A. Well, I don't believe that it would have had any It really is not very much heat. The reason

effect at all.

the heat was on was because it was a cold day. that's why one has the heat on.

I mean,

So the -- the heat on in the car may have brought the -- the car temperature up to room temperature, this kind of room temperature, or somewhat higher. But in

the laboratory, when we want to do an experiment to analyze the volatile material, we use -- well, sometimes we use a hundred degrees C, which is boiling water, 212 Fahrenheit, but the lowest temperature we would use would be 80 degrees Centigrade, and that's 175 degrees Fahrenheit, which is way over what would have been in the car. Q. Now, in this case, the marijuana was packaged in If these bags were heat-sealed, what

four small bags.

effect, if any, would that have, the packaging of the marijuana in this case have on whether or not an odor could be detected? A. Well, the -- the heat seal would prevent any escape of

volatile material from the bag except for a very small amount that would go -- would diffuse through the plastic.

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And we know from our food work that -- that odors do go through plastic, but not quickly. It takes -- takes time

and temperature for that to happen. Q. And, again, would the temperature of the heat being on

in the car be sufficient enough temperature? A. No, no. I'm talking about elevated temperature.

I'm not talking about room temperature or whatever the car was, no. Q. Now, what if the bags weren't heat-sealed? They were

just zip-lock bags?

Would that have an effect on whether or

not any gases or odor would be detectable? A. Oh, it would depend on -- on how well sealed that But the zip-lock has to be pretty well

zip-lock is. closed.

When the zip-lock is carefully closed, then it's --

it's pretty close to a heat seal. It has -- the zip-lock has to be pretty well sealed. Otherwise, it would -- it would open up under

normal handling. So the -- just the self-protective nature of the person sealing the zip-lock would -- would require that that zip-lock would be pretty well sealed, and that would -- that would provide, or that would -- yes, the carefully sealed zip-lock would provide a pretty good barrier to any odor that would come out. Q. And have you had occasion to, in your experience, to

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analyze plastics? A. Q. Yes. And is there a difference between something being

sealed in a plastic bag as opposed to a paper bag? A. The -- there's a great difference between -- between It goes back to my statement about sealing

the two.

the -- the marijuana plant in plastic, that being bad, because the moisture supports the growth of mold. So normally the fresh plant has to be stored in a paper bag so that the moisture can get out and the mold does not take over the evidence. Q. But, again, you testified previously that with that

moisture and the vapors escaping, most of the odor escapes also? A. Yes. Yes. The most volatile portion, the part that

has the most odor, is evaporated off. Q. So in this case, it's your opinion that given how the

drugs were packaged in the sealed or zip-lock bag and inside of another bag inside the coat pocket, in your opinion, it would not give off an odor to someone standing next to the car? A. That's my opinion. It would not give off an odor. I have no further questions. Cross-examination.

MS. KOUSOULIS: THE COURT:

All right.

MS. EISENSTEIN:

May I approach the witness,

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your Honor? THE COURT: Yes, you may. CROSS-EXAMINATION BY MS. EISENSTEIN: Q. I'm showing you what has been marked as Government's

Exhibit 1A and has been admitted as Government's Exhibit 1A (handing exhibit to the witness). Now, was your testimony on direct that you did not discern an identifiable odor from the examination of the contents of Government's Exhibit 1A; is that correct? A. Q. Yes. And were you able to -- did you have an opinion about

what is contained in Government's Exhibit 1A, what is the substance contained in that? A. Without microscopic examination, I would not venture It's clearly a -- a dried plant material, or

an opinion.

looks, by eye, looks like a dried plant material. Q. If you would, would you just take the contents of

Government's Exhibit 1A out? Now, is it fair to say that those constitute four zip-lock bags; is that right? A. bag. I -- they're -- there is a zip-lock portion of the I'm fairly certain that at least one of them is

heat-sealed. Q. What about the other three? Are the other three

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heat-sealed? A. The other three may not be heat-sealed. I do see

some -- some of the greenish material coming out, which suggests that it's not a heat seal. Q. Now, you testified that your opinion about the smell

of marijuana, whether it be fresh or dried, is based on your own experience in smelling pieces of evidence that came into your lab; is that correct? A. Q. Yes. And right here you say that you don't smell anything;

is that correct? A. Q. Right. So is it fair to say that your sense of smell is not

perhaps the most acute, or would you have a basis for comparison? MS. KOUSOULIS: didn't smell anything. THE COURT: Well, I have to say, I want to smell Your Honor, I would object. I

these drugs before they are taken away again. MS. EISENSTEIN: MS. KOUSOULIS: BY MS. EISENSTEIN: Q. Well, my question is: Do you have a basis of Yes, your Honor. In terms of my objection?

comparison for your ability to smell in comparison to other people's?

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A.

I have experience in our laboratory at making And in the process of doing

distinctions between odors.

that, we have gone through some -- some comparisons, so that I know my sense of smell is just fine. I'm not the world's greatest at making the -the distinctions between the -- the -- the various notes of the odors, but as far as my sense of smell, the sensitivity of my smell, it's okay. Q. And we checked that.

Now, you received extensive training in the

microscopic identification of marijuana; is that correct? A. Q. Yes. Have you received training about the identification of

the smell of marijuana as it appears in fresh or as it might appear on the street in its dried form? A. Q. No. That's entirely from just experience.

But you have not received specific training on how to

identify the smell of marijuana; is that correct? A. No. I know what marijuana smells like, but I've not

received training in that. Q. And you testified in your direct examination that the

volatility or the amount of smell would be greater when marijuana is fresher; is that correct? A. Q. Yes. And so the fresher the substance is, the more it would

smell; is that correct?

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A.

Well, we're talking about the dramatic difference We're not talking

between the plant and the dried material. about weeks or months.

We're -- once it's dried, it's --

it's not -- it does not change a whole lot. Q. odor? A. Q. Oh, it has an odor, sure, but not much. And when this substance was seized on November 26th, And is it your opinion that dried marijuana has an

2007, would you agree that it was fresher at that point than it is today? A. Now, that's what I was getting at. The -- the

difference between fresh marijuana in the plant and the dried material is a huge difference. But by the time it

becomes dry, all the -- most of the volatile material has been removed, so that the difference between six months ago and now would be trivial. Q. Now, your experience based on the smell of marijuana,

that was in a lab environment; is that right? A. Q. Yes. And in the lab environment, is it fair to say that

there are vents and ventilation that is provided, especially since you're handling drug evidence? A. Actually, the -- the examination of the drug evidence

in my laboratory is done in our conference room, which is well removed from the items you are mentioning, and the

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examination in the police laboratory is also done in a conference room, because they won't let me in the police laboratory. Q. it? A. Q. It is not -- correct. It is not like a car. So it's basically an office environment.

And it's not an enclosed environment such as a car, is

And have you done any empirical studies or tests of

what happens when any quantity of marijuana is located in a closed car with regard to its smell? A. Q. I have not done those studies, no. And what about when -- you testified on direct that

the fact that the heat was on in the car would, in your opinion, have no effect. Was that opinion based on any actual studies that you, yourself, have done or reviewed? A. No. It's based on the temperature of the car not

being significantly different from room temperature. Q. But you have never actually tested that hypothesis

that you just stated, that if marijuana, for example, were in a closed car, the smell might be stronger to the perceiver than, let's say, in a conference room? A. Well, we're not going to controvert the laws of Volatility is volatility and you've got to

physics here.

have a lot of -- you've got to have a high temperature for there to be the kind of an odor that you are talking

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about. Q. Well, what if, for example, the marijuana was not in

the heat-sealed bag, but, rather, was as it appears in Government's Exhibit 1A, in bags with residue actually physically on the outside. Then, would the fact that the

marijuana, in your opinion, was in a closed car with the heat on, would that impact the ability of somebody standing right outside the car to perceive that smell? A. A couple of particles of marijuana, no, I don't

believe that would change my opinion. Q. What about the length of time that the marijuana was Would that affect the level of smell that

in the car?

someone was able to perceive? A. Q. No. Do you know whether that bag was opened by Ewell prior

to it being seized by him on November 26th, 2007? A. Q. No. Do you know whether Ewell or anyone else packaged that

bag of marijuana inside the car prior to the stop? A. Q. No. Do you know whether there was any residual marijuana

that might have been on the defendant's hand at the time of the stop? A. Q. No. Is it your opinion that any of those things might

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Duerr - redirect 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 be excused? MS. KOUSOULIS: Your Honor, I would ask -- the BY MS. KOUSOULIS: Q. Just briefly to follow up on some of Ms. Eisenstein's smell? A. I don't believe they would, no. MS. EISENSTEIN: THE COURT: Nothing further, your Honor.

Redirect. REDIRECT EXAMINATION

questions. So it's your testimony that the temperature of the car would not be significant enough to change the volatility of the marijuana to cause it to emit a noticeable odor? A. Q. Yes. And in the context of the facts of this case, with the

marijuana being in the sealed bags, four sealed bags in another plastic bag in a jacket pocket, is there -- is it -is there likely to be an odor sufficiently emanating from the car for someone to notice the smell? A. No. MS. KOUSOULIS: THE COURT: I have no further questions.

Anything else, or may this witness

government is calling an expert, and I may want to, based on that, recall Dr. Duerr.

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Duerr - redirect 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 that -Exhibit 1A. The only thing I would like to note for the record is that it has been handled by a number of people, so I would just point out that the condition that the bags are in now, even with regard to any residue being outside the zip-lock, be taken into account, since I don't believe there was any testimony from Officer Conkey, who recovered the drugs, that this was any residue outside the bags. So I would just ask that your Honor consider evidence? THE COURT: Could I see it before it goes back remain. THE COURT: from the bench. MS. EISENSTEIN: THE WITNESS: Yes, your Honor. All right. But you may step down THE COURT: All right. So I would just ask that he

MS. KOUSOULIS:

What should I do about the

to the government, actually? MS. KOUSOULIS: Your Honor, if I just may,

just for the record, I have no objection to your Honor smelling -THE COURT: I appreciate that. -- smelling the Government

MS. KOUSOULIS:

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Miller - direct 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 A. BY MS. EISENSTEIN: Q. Special Agent Miller, good afternoon. Can you just Eric Miller. PLAINTIFF'S TESTIMONY ... ERIC GEORGE MILLER, having been duly sworn as a witness, was examined and testified as follows ... DIRECT EXAMINATION THE COURT: All right. -- when looking at the evidence.

MS. KOUSOULIS: THE COURT:

All right.

(Witness excused.) THE COURT: call your witness. MS. EISENSTEIN: Yes, your Honor. And I guess if you would like to

The government calls to the stand Special Agent

state your name for the record, please? A. Q. Eric George Miller. If you would just pull the microphone up. And where do you currently work? I'm currently employed by the U.S. Department of Thank you.

Justice, Drug Enforcement Administration, here in Wilmington, Delaware. Q. A. Is that abbreviated DEA? Yes, it is.

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Miller - direct 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 Q. A. Q. A. Q. How long have you worked for the DEA? Over 18 years. What is your position there, currently? I'm a Special Agent. During the course of your experience as a DEA agent,

how long -- do you have experience specifically handling drug evidence? A. Yes, I do, both as seizing agent of numerous I've also

controlled substances throughout the years.

been, off and on, for 12 years, the drug evidence custodian in our, both this office and previous offices, in that I handle all drugs that come in and go out of our office. Q. Does that specifically include handling marijuana

evidence that's seized? A. Yes, it does. Currently, our office right now is the

marijuana storage for the whole Philadelphia division, so we literally have thousands of pounds in and out of our office at any given time. Q. Now, do you receive, as part of your training

and experience as a DEA agent, do you receive specific training in the identification and smell of controlled substances? A. Yes. In the 12-and-a-half week basic DEA Academy that

I attended, we had training in both the smell of freshly cut marijuana and burning marijuana. Prior to that, I also

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Miller - direct 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 received training from attending schools when I was at Glassboro -- a Glassboro police officer in Glassboro, New Jersey. Q. And what about your experience with regard

specifically to the smell and identification of marijuana? Can you just estimate for the Court the number of seizures you've been involved in that have involved marijuana evidence? A. It's going to be a high number since being evidence Say well over 250.

custodian. Q.

Were you involved in -- have you had experience

seizing marijuana evidence in the field? A. Q. Yes, I have. As part of, let's say, when you're out on the street,

making stops that involved marijuana evidence? A. Q. Yes, I have. And what about with regard to different quantities of Can you explain for the Court

marijuana in those seizures?

the range of quantity of marijuana that has been involved in various seizures? A. Yes. It ranges the whole gamut from small individual

$5 bags, which these appear to be, all the way up to, you know, 25 and 50-pound bales of marijuana. Q. And when you say these appear to be, do you mean the

little packets that are part of Government's Exhibit 1A?

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Miller - direct 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 A. Q. A. Q. Yes, I do. You would describe those as $5 bags? Yes. Now, when you have -- you said that you've made The actual seizures

seizures involving fresh marijuana.

that you've done involving fresh marijuana, can you estimate about how many those are? A. Q. Well in excess of 50. And do you hae experience in handling marijuana and

seizing marijuana that has been packaged in plastic baggies such as Government Exhibit 1A wrapped in plastic? A. Q. Yes, I have. Would you say in your general experience that that

form of packaging marijuana is common on the street in the seizures that you've seen? A. Q. Yes. It's very common.

And do you have a position currently specifically

involving marijuana in the State of Delaware? A. Yes. I am currently the marijuana eradication I keep statistics and control all

coordinator for Delaware.

the funds throughout the State of Delaware for marijuana eradication. I also conduct training to local and state

officers and civil air patrol on marijuana eradication and attempt to be there for all marijuana fields that are discovered in the State of Delaware.

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Miller - direct 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 MS. EISENSTEIN: Your Honor, at this time the

government moves for the qualification of Eric Miller in the identification of both smell and appearance of marijuana. MS. KOUSOULIS: BY MS. KOUSOULIS: Q. A. Q. Good afternoon, Agent Miller. Good afternoon, ma'am. You testified that you have been, off and on, evidence If I could ask a few questions.

custodian for the last 12 years; is that correct? A. Q. That is correct. How much would you say, what percentage of your job is

as evidence custodian? A. It was all of 12 years, and then I was -- I switched

positions to be a technical agent in our office, so it was that full 12 years out of my 18 years experience. Q. Now, you said that you received training in the smell

of unused marijuana and burnt marijuana; is that correct? A. Q. That is correct. And when you say training, what kind of training --

what was the specific training you received? A. I attended basic two-week school when I was a

Glassboro police officer, where they had cut marijuana there, not burnt or dried, for us to be able to smell. They had dried marijuana for us to smell and

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Miller - direct 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 then they placed some of the marijuana in a coffee can, literally, and burned it, and allowed us to smell that. And that's also similar training that I had at the DEA Academy. Q. And you talked about your experience in actually

seizing marijuana as part of your duties as an agent and then collecting evidence and storing evidence as custodian; is that right? A. Q. That is correct. And in your duties as -- in actually seizing the

evidence, approximately how many cases have you been involved in where you seize marijuana for $5 bags or less? A. Q. Or less? Well over 25.

And as evidence custodian for the DEA, for the drug

evidence custodian, it's fair to say that most of the drugs that you're storing are large quantity drugs; is that correct? A. Correct, but not in respect to marijuana. We --

we often seize small quantities of marijuana along with what we call user amounts of marijuana along with the larger portions of cocaine and crack cocaine that we seize from the, you know, the distributors, the person selling them. Quite often they have small, what we call personal

use amounts of marijuana on them, and we seize those and

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Miller - direct 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 just send them to our lab. Q. Now, when you, as evidence custodian, when you receive

drug evidence from other officers, or other agents, you are many times not involved in the actual seizure of that evidence. You are just the custodian of it after it has

been seized by another agent or officer? A. Yes. They will take the marijuana, place it in an

evidence bag, heat seal it in our evidence bags, which you have seen, complete the paperwork and turn it over to me, and I would log it in our evidence log. Q. So it's fair to say as evidence custodian, the

evidence you receive, the marijuana evidence you receive, is in a heat-sealed evidence bag before you get it? A. If it's a small quantity, yes. If it's a large bale,

it's not. Q. But in terms of small quantities of marijuana

evidence, as evidence custodian, when you receive it, it's always in a heat-sealed bag; correct? A. Q. A. Q. Correct. And you store it in the heat-sealed bag; correct? Correct. And as an agent, when you are in the field and you

make arrests, those times that you seize the marijuana -strike that. MS. KOUSOULIS: Your Honor, I have no further

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Miller - direct 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 questions. THE COURT: there an objection? MS. KOUSOULIS: THE COURT: BY MS. EISENSTEIN: Q. Now, in your experience, does marijuana in its dried No, your Honor. All right. He is accepted -- is

He is accepted as an expert.

form, such as in Government's Exhibit 1A, have a distinctive smell? A. Q. Yes, it does. And can you just give some kind of description about

the type of smell or the strength of smell that marijuana in its dried form has, in your opinion? A. Well, in its dry form, as marijuana dries out, the Okay. To use an example, if you pick fresh

odor lessens.

basil out of your garden and smell it, it's going to have a stronger, more prominent odor. If you go to your cabinet,

your spice cabinet, and take out some dried basil, you are still going to be able to tell that it's basil. going to have less of a smell. Q. And so in your opinion, does marijuana behave similar It's just

to other herbs, such as the one you describe, basil, or things that other people might have common experience with? A. Exactly. The process is the same as it dries.

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Miller - direct 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 Q. Now, do you have experience with different factors

that might affect the strength of the smell of marijuana, particularly, let's say, if the marijuana were seized in a car? A. Q. Yes, I do. And have you made seizures of marijuana, small

quantities of marijuana, from somebody who is in a vehicle? A. Q. Yes, I have. And in your particular experience, have you able to

detect the odor of marijuana in small quantities, such as Government's Exhibit 1A? A. Q. Yes, I have. And just for the record, you have reviewed

Government's Exhibit 1A; is that correct? A. Q. Yes, I did. And were you able to detect an odor currently from

Government's Exhibit 1A? A. Q. Yes, I was, earlier. If you could review Government's Exhibit 1A, do you

currently detect an odor? A. Yes. It's even stronger now. The more it's handled,

the stronger the odor will be. Q. And can you describe for the Court an example of the

time when you seized a small quantity of marijuana and were able to identify a noticeable odor in a car-type

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Miller - direct 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 situation? A. Q. A. Q. A. Yes. You don't need to give a particular case name. Okay. If you can describe what happens. We arrested an individual in a car, a female, who had

a small quantity of marijuana located in a purse directly next to her, and as I was coming in from the passenger side, searching the car, clear distinct smell of marijuana emanating from her purse. Q. A. Q. And how far away at that time were you from the purse? Three to four feet. Were you standing at the door of the passenger side or

some distance? A. Q. A. Q. I was just starting to come in. And was the window just rolled down? No. I had just opened the door.

And then you actually seized that marijuana in that

particular case. Was it packaged in plastic zip-lock baggies, or how was it packaged? A. It was actually in -- if I remember my math right, These are referred

it was a bag slightly larger than this.

to as coin bags and they're several sizes and it was in two baggies justthe next size up from this bag.

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Miller - direct 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 Q. A. Q. Was that a zip-lock bag? Yes. Exactly the same style.

And going back to your experience in seizing marijuana

from cars, can you describe a few of the factors that, in your experience, particular experience, affect the strength of the smell of marijuana? A. Yes. In my experience, both on the street, with cars,

and our own drug evidence vault, they act as what I always call secondary containers. Q. A. And by they, do you mean the car? The car itself will act as a secondary container. So as the door or

It will capture the marijuana smell.

window would be open, you're going to get some of the smell emanating from that vehicle, as is our own drug evidence room. Every time I open up the evidence door in our office, even though they're heat-sealed, desks 30, 35 feet away, can smell the odor in our office from opening and closing that door. Q. Have you had experience in making a car stop involving

a marijuana seizure where the heat was on versus when the heat is not on? A. Q. Yes, I have. And can you describe the comparison that you have

observed in your own experience?

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Miller - direct 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 A. Yes. In my experience, it intensifies the heat.

And I will give you an even more extreme example of that other than a car stop. Even though, in my experience,

depending on how long it has been in the car, how much it's handled and the heat, it does intensify. Our own evidence vault in our office, during the winter, we noticed such a strong smell of odor coming from there that we actually had to have the building manager come in and shut the vents down. Q. Therefore --

The vents down to stop the heat from going into the

evidence room? A. Correct. Correct. And to stop the odor from

escaping. Q. And what about whether the package, the packages,

little packets of marijuana, were opened or not in the car? Would that affect, in your opinion, the strength of the smell of the marijuana? A. Oh, absolutely. As you can tell here, the more it's

handled, and if it's open even a tiny bit, you are going to get more smell. If it's perfectly sealed and not handled,

you'll have an odor, especially if there's residue on the outside of the bag. Even though the residue may not be

visible, you will have an odor. Q. And what about if the bag was not opened? Do you have

experience with situations with sealed bags?

Have you still

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Miller - direct 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 been able, in your own experience, to detect the smell of marijuana? A. Q. Yes, I have. Can you describe for the Court some, either a

particular example of that, or describe what you mean by that? A. I can do both. What I mean by that, recently, we

received a small quantity of marijuana that was sealed in a zip-lock bag and placed inside side a safe, and it was clearly -- the smell of marijuana was emanating before we even opened the safe. Q. What about, do you use heat-sealed bags in your role

as evidence custodian? A. Q. Yes, I do. And what about with a heat-sealed bag? Have you been

able to detect odors emanating from the -- sorry -- excuse me -- the smell of marijuana emanating from a heat-sealed bag? A. Yes, we have. An example of that would be two months

ago now, we seized a quantity of marijuana that was placed into a normal DEA evidence bag that was heat-sealed. I then

placed that bag into a brown box, wrapped that with brown paper, sealed all the edges with thick brown tape, brought it to the post office, and had to badge the postal employee who smelled the marijuana and explained to him that it's

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Miller - cross 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 BY MS. KOUSOULIS: Q. Now, officer, Agent Miller, you testified that you going to our DEA lab. That's quite common. DEA used to use other

means of sending their drugs to and from our lab, and we have lost packages that I believe is based on an employee smelling the odor coming from the boxes and then stealing the packages. Q. So do you have an opinion whether the bags, as these

packets are packaged here, if they were placed in a, just sandwich bag and in a coat pocket, such as Government's Exhibit 2, whether that would have a detectable odor in a heated car? A. Yes, it would. MS. EISENSTEIN: THE COURT: Nothing further, your Honor.

Cross-examination. CROSS-EXAMINATION

found, in your experience, a distinction between whether the heat on a car is on or off when you discover marijuana in the car, is that right in terms of the odor? A. Q. Yes. And what are you basing the fact that you might detect

an odor, a different odor or more of an odor in certain situations and other situations on the fact that -- strike that.

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Miller - cross 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 How are you able to determine that it's the heat causing the odor to be more distinctive in certain car stops? A. The heat would be one of the factors. The heat would

not be in sole factor. Q. But can you state with any type of scientific

certainty that that was the reason that you smelled the marijuana more intensely in certain cases than in other cases? A. I can't say scientifically. In my experience, I

believe that's what caused it.

As I gave you an example of

our office, the heat in our drug storage room we had to have shut down to lessen the smell of marijuana emanating throughout the office. Q. And it's fair to say that, in your evidence storage

room, you have a lot more marijuana, the quantity of marijuana is rather high as compared to the four small bags that were involved in this case; is that correct? A. Q. At times, correct, but it's also much larger space. Was there ever a time when you had just four bags and

it gave off a smell in your evidence room? A. Q. I don't specifically recall that, no. Now, you also testified that, at times, you have to

ship the drugs through the mail to other agencies? A. To our Northeast regional lab in New York.

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Miller - cross 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 Q. And you testified that, in your experience, different

postal employees have noticed the smell through the packaging; is that right? A. Q. Correct. It's fair to say in those cases, what amounts of drugs

were involved? A. Q. From smaller to this to larger boxes. And the specific example that you gave where the

postal employee made a comment about smelling marijuana, it's fair to say that that marijuana was a larger quantity than what's involved in this case; correct? A. Correct. I believe that was approximately one ounce

of marijuana. MS. KOUSOULIS: (Pause.) BY MS. KOUSOULIS: Q. Now, you also in this case, the government had you One moment, your Honor.

smell marijuana in this particular case, the four bags, to see if you detected an odor; correct? A. Q. That is correct. And it was your testimony that you did detect an odor;

correct? A. Q. Yes, it is. And it's fair to say after you smelled the marijuana,

after you were asked that question -- when you were asked

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Miller - cross 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 that question, the marijuana was sitting in front of you, approximately -- in the bag, or next to the bag, approximately three, two feet from your nose; correct? A. Q. Correct. And it's fair to say that when you were asked that

question, you held the marijuana up to your nose and sniffed it at that time; isn't that correct? A. Q. That's correct. And it was after holding it up to your nose, directly

to your nose and sniffing it, that you testified that you smelled the odor of marijuana; correct? A. Q. Correct. And in this case, it's fair to say that the marijuana

had been handled quite a bit since it was recovered back on the day of Mr. Ewell's arrest; correct? A. Q. It has been handled. From what you know of this case, it was -- it's fair

to say that the marijuana was -- after it was taken from the jacket pocket, was sent back and forth to the Medical Examiner's Office on at least two occasions for analysis and was handled by yourself, Officer Conkey, and perhaps other people; correct? A. It looks like it was turned in to the drug vault on

December 6th, removed on December 10th, and then again in -on April 14th, and then this morning.

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Miller - cross 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 Honor. THE COURT: All right. Are you all going to Thank you. (Witness excused.) MS. EISENSTEIN: Your Honor, the government has MS. KOUSOULIS: (Pause.) MS. KOUSOULIS: THE COURT: I have no further questions. One moment, your Honor.

Redirect. Nothing further for this

MS. EISENSTEIN: witness, your Honor. THE COURT:

All right.

You may step down.

nothing further by way of rebuttal. THE COURT: Anything else, Ms. Kousoulis? One moment, your Honor.

MS. KOUSOULIS: THE COURT: (Pause.) MS. KOUSOULIS:

All right.

I have no further evidence, your

submit some post-hearing briefs? MS. KOUSOULIS: MS. EISENSTEIN: THE COURT: Yes, your Honor. Yes, your Honor. Work out a briefing

All right.

schedule and file something so we know when to expect papers. Thank you very much.

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Miller - cross 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 DEFENDANT'S TESTIMONY WITNESS Brian E. Conkey Stephen Duerr DIRECT 13 16 CROSS -28 REDIRECT -34 RECROSS --PLAINTIFF'S TESTIMONY WITNESS Brian E. Conkey Eric George Miller DIRECT 4 36 CROSS 7 49 REDIRECT 11 -RECROSS --I N D E X MS. KOUSOULIS: MS. EISENSTEIN: Thank you. Thank you, your Honor.

(Court recessed at 12:42 p.m.) -