United States v. Symonevich, No. 11-1236 (1st Cir. 2012)Annotate this Case
DEA obtained permission to wiretap telephones. Symonevich arranged by phone to buy heroin at McDonald's off I-495. During a call, "Tony," asked Symonevich what kind of car he was driving; the answer was a green Subaru. Agents sent units to I-495; they observed what they thought was a meeting between Symonevich and a courier. Agents planned to stop Symonevich, but lost sight of the car. Later that day, unrelated to the DEA investigation, officer Sweeney stopped the car for a broken light, observed Symonevich, reaching under the seat and looking "scared." Officers smelled marijuana on Symonevich's clothing. The driver refused permission to search the car; Sweeney searched, fearing a safety threat. During the stop, Sweeney learned that Symonevich was the subject of a DEA investigation. Sweeney found a can of tire sealant under the seat. The weight was unexpected and he felt movement inside. The bottom of the can was separated; he unscrewed it and found bundles that he believed to be heroin. Convicted of conspiracy to distribute, and to possess with the intent to distribute, cocaine and heroin, 21 U.S.C. 841(a)(1), 846, Symonevich appealed denial of his motion to suppress. The First Circuit affirmed, rejecting challenges to sufficiency of the evidence, admission of certain testimony and charts, and the conspiracy instruction given to the jury.