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UNITED STATES v. RESTREPO

May 30, 1995

UNITED STATES OF AMERICA against CHRISTIAN JOHN RESTREPO, ALBERTO CARO, and JOSE FRANCISCO GUEVARA, Defendants.


The opinion of the court was delivered by: JACK B. WEINSTEIN

 I. Introduction

 II. Guevara's Motion to Suppress

 
A. Facts
 
B. Which Circuit's Law Applies
 
C. Validity of Stop and Subsequent Detention
 
1. Law
 
2. Application of Law to Facts
 
a. Stop
 
b. Further Detention
 
D. Search
 
1. Law
 
2. Application of Law to Facts
 
E. Suppression as "Fruits of Poisonous Tree"
 
1. Law
 
2. Application of Law to Facts

 III. Caro's and Restrepo's Motions to Suppress

 
A. Facts
 
B. Caro's Motion
 
1. Law
 
a. Standing to Challenge Validity of Consent
 
b. Validity of Consent
 
2. Application of Law to Facts
 
C. Restrepo's Motion
 
1. Law
 
2. Application of Law to Facts

 IV. Conclusion

 AMENDED MEMORANDUM AND ORDER

 Weinstein, J.:

 I. INTRODUCTION

 Alberto Caro, Jose Francisco Guevara and Christian John Restrepo seek to suppress statements and other evidence of a drug conspiracy. They are charged with conspiring to distribute and to possess with intent to distribute, and with possessing with intent to distribute, cocaine. 21 U.S.C. §§ 841(a)(1) & 841(b)(1)(A)(ii)(II). They move to suppress the following statements and other evidence: Guevara: evidence and statements obtained by law enforcement officials following a traffic stop, on grounds of a series of alleged Fourth Amendment violations; Caro: tapes of conversations between himself and Guevara on the ground that the statutorily required consents to the recordings were not obtained; and Restrepo: evidence obtained as a result of a "security sweep" of his house.

 Guevara's motion is granted: law enforcement officials violated his constitutional rights, starting with an illegal stop and search of his car. Caro's motion is denied: the requisite consent to his telephone conversation with Guevara was given by the latter. Restrepo's motion is granted: the search of his home was illegal.

 II. GUEVARA'S MOTION TO SUPPRESS

 A. Facts

 An officer of the Memphis Police Department stopped Guevara, a swarthy Hispanic-appearing male driving a Cadillac with California license plates on an interstate highway in Tennessee. Guevara's eleven-year-old son, Rodolfo, was in the front passenger seat and his wife and two younger children were in the rear.

 At a full evidentiary hearing in the Eastern District of New York, the officer testified that Guevara was speeding -- driving 65 miles per hour in a 55 miles per hour zone. Guevara and Rodolfo both testified that Guevara was driving slowly because the family was seeking a place to stop for breakfast. Guevara also stated that he was driving at less than 55 miles per hour because he did not want to be intercepted while he was carrying drugs. Rodolfo testified that as they passed the police car he noticed that the car's speedometer read 47-50 miles per hour and that his mother had just chided his father for driving too slowly.

 Because Guevara does not speak English, the officer used Rodolfo as an interpreter for communicating with Guevara during the stop.

 Rodolfo testified that the officer stated that the reason for the stop was that Guevara was driving too closely behind a tractor trailer. Guevara testified that the officer never told him, through Rodolfo, the reason for the stop. He did, however, acknowledge driving within five or six meters of a tractor trailer. He also believes that at some point during the stop, Rodolfo told him that the officer had mentioned tailgating. The "traffic courtesy warning" issued by the officer states that Guevara was "speeding 65 MPH in a 55 MPH zone."

 The officer sought and received Guevara's driver's license which he used to fill out a "courtesy warning." Guevara did not ask his son to translate the courtesy warning, believing that it was not important and that after signing it, he would be permitted to depart.

 As the officer filled out the courtesy warning, he questioned Guevara and Rodolfo about their trip. According to Guevara, the officer was "burning time while he filled out the courtesy ticket, he was continuing to ask me questions." Guevara explained that the family was headed to Queens, New York for three days' vacation. Rodolfo testified that the officer also asked Guevara if he is "Mexican."

 The officer testified that during this conversation, he noticed that Guevara was growing "more and more nervous," that "his hands were quivering," and that Mrs. Guevara "kept looking back like, you know, nervously every time I would talk to [Guevara,] . . . a real nervous type reaction to me." Under cross examination he explained that general conversation is used to elicit signs of possible criminal activity independent of a traffic violation.

 As or immediately after the officer issued the courtesy warning, a second officer arrived. According to the first officer, the second officer happened upon the scene. The second testified, however, that he had been radioed by the first, and Guevara testified that the first used the radio in his patrol car after taking Guevara's license and registration. The second officer asked Guevara many of the same questions that the first had already asked, and received consistent answers.

 After Guevara signed the courtesy warning, the second officer asked if he could speak with Mrs. Guevara, and Guevara agreed. The second officer stayed with Guevara while the first went to open the driver's side door. As he opened it, he "observed that the door was overly heavy for a regular door. Felt like it was heavy to me." Then, according to the first officer, he realized that traffic was coming and that it would be better for Mrs. Guevara to exit from the other side; he shut the door and walked back to the squad car, while the second officer walked over to the passenger side door.

 Through the open window of the car, the second officer attempted to communicate with Mrs. Guevara in Spanish. In response to his questions, Mrs. Guevara explained that the family was headed to New York, that they were to be gone a week, and that the trip's purpose was to visit relatives.

 Based on the observed nervousness of Mr. and Mrs. Guevara, the fact of the heavy door, and what they felt were discrepancies in the Guevaras' replies to questions about the length and purpose of the trip, the officers decided to request permission to search the car. According to the first officer, it "appeared like it was more than just a speeding violation at that time. We didn't know what it was."

 The second officer asked Guevara in Spanish if he had any guns or illegal drugs in the car and if he would consent to a search. According to the first, Guevara denied that there was anything illegal in the car but agreed to the search.

 The second officer asked Guevara to sign a written consent-to-search form. He testified that he first explained the form in English. When Guevara looked confused, this officer flipped the form over to the Spanish side whereupon Guevara "scanned the form with his eyes it looked to me like line-by-line." According to the first officer, Guevara "signed the English side first and then the Spanish side I believe." Both officers testified that the blanks on both sides of the form had already been filled in when it was presented to Guevara.

 The first officer testified that the officers did not specify in their request a particular part of the car for the search, such as the trunk or glove compartment. The pre-typed portion of the consent form authorizes "a complete search" of the car.

 According to the officers' account, after Mrs. Guevara and the remaining children exited the car, the search of the car commenced. While the second officer stayed with the family, the first opened the driver's side door, "popped" the panel and some additional plastic covering, and observed "a bundle of possibly some type of narcotic."

 Guevara's and Rodolfo's testimony contradicted that of the officers. Guevara denied that he was asked whether there was anything illegal in the car. He testified that the blanks on the consent-to-search form were not filled in when it was handed to him to sign and that the officers asked only to search the trunk. He testified that he could not read the English-language consent-to-search form, and that he did not ask his son to translate because he believed it merely authorized a search of the trunk, after which he would be permitted to leave. Guevara's signature appears on both sides of the form. Guevara testified that he signed where the officer pointed, without ever holding the form in his hands. He recognized his signature on the Spanish-language side of the form but did not recall signing that side, noting that the process happened "very fast." He claimed that he did not feel free to leave, but he hoped he would be allowed to if he consented to the search of the trunk.

 Rodolfo also testified that the officers stated only that they were going to search the trunk. He denied that the officers asked for or received permission to search the inside of the car. He testified that in response to the officers' request, Guevara agreed to open the trunk, and did so, whereupon it was searched by both officers. One of the officers then went on to search the glove compartment, and then pulled apart the plastic paneling on the driver's door.

 After discovering a bundle in the door panel, the officer pointed his gun at Guevara and told him to drop to his knees and put his hands behind his back. Guevara complied and was handcuffed. The children and Mrs. Guevara were directed to the back of a squad car. One of the officers retrieved the package. It tested positive for cocaine.

 The first officer then informed Guevara that he was under arrest for possession of cocaine. According to the officers' testimony, both of them recited Miranda rights to Guevara -- the first in English from memory, and the second in English and then Spanish from a card when Guevara appeared confused. The second officer testified that Guevara shook his head in the affirmative when asked whether he would answer questions. Neither officer made a record that the Miranda warnings were given. Guevara denied receiving Miranda warnings at his arrest.

 The second officer then asked Guevara how much cocaine was in the car. Guevara responded "sixty" in English. Ultimately 60 1-kilogram bricks of cocaine were found secreted within the side panels of the car.

 Two additional officers, one a Lieutenant, joined the scene. Upon learning at this time, that Mrs. Guevara was a Colombian, Rodolfo testified that the second officer responded, "No wonder." The family and their car were taken to the Memphis Police Department.

 Guevara was led to a holding cell at the Organized Crime Unit (OCU) office and left alone. Mrs. Guevara and the children were held in the office while the officers decided whether or not to charge her. Ultimately, they were released.

 A volunteer Spanish interpreter, Emily Quintana, who is not on the staff of the Memphis Police Department, was called, together with Officer Stephen Friedlander, who had taken some Spanish in high school and college. Friedlander testified that he is not fluent in Spanish. Detective Richard Borgers, a member of the Memphis Police Department assigned to the DEA task force, testified that he selected Officer Friedlander over Ms. Quintano as the interpreter.

 Without first informing Guevara of his Miranda rights, Borgers explained to Guevara that he was facing federal charges, that sentencing guidelines would apply if he were to be found guilty at trial, that the judge would have to adhere to the guidelines unless the prosecutor submitted a cooperation letter, and that cooperation had to be "total, complete." Borgers testified that Guevara then indicated that he wanted to cooperate.

 According to Borgers, Friedlander then read to Guevara in Spanish his Miranda rights from a card supplied by Borgers. Guevara responded that he wanted an attorney and that he wished to cooperate. Borgers told Guevara that he would have to speak to an attorney before going any further.

 Borgers offered to assist Guevara in obtaining retained counsel but Guevara said he could not afford one. Borgers then attempted to call an Assistant United States Attorney. When that failed, he spoke with a Shelby County Assistant Attorney General to try to arrange for a court-appointed attorney from the public defender's office. When that also failed, Borgers told Officer Leo Hampton to fill out the arrest ticket and take Guevara to the Shelby County jail, where he was kept over the weekend.

 Hampton was assigned to complete Guevara's paperwork in preparation for bringing him to the Shelby County jail. Before an attorney was supplied, Hampton asked Guevara who had put the cocaine in the car and when he was expecting to arrive in New York, and Guevara responded with various incriminating answers. Hampton provided Guevara with one of his business cards, with a beeper number on it, and "advised him that if he wanted to contact any of us or talk to me that he can . . . [page] me . . . and we'd come over to him." At the time the statements were elicited, Hampton was aware that Guevara had requested an attorney. Guevara was then taken to the Shelby County jail.

 At approximately 8 or 9 p.m. that night, Hampton received a beep on his pager. When he learned that the page number was for the Shelby County jail and that a "Hispanic" wanted to speak to him, he telephoned Borgers. Borgers directed Hampton not to contact Guevara or talk to him, and Hampton complied. Guevara testified that he did attempt to reach Hampton several times, and was given access to a phone, but did not succeed.

 Guevara's recollection of these events differs in some respects. For example, in his testimony he referred to two interrogations, with a female interpreting, in addition to his questioning by Hampton. The differences are not material to the suppression motion since the government does not intend to use Guevara's statements made at the OCU.

 Guevara and his son both testified that while they were held at the OCU office on the day of the arrest, Guevara was threatened that if he did not cooperate, his wife would be prosecuted and his children would be taken away. According to Guevara, he said he would cooperate if the agents would guarantee that nothing would happen to his family. Guevara testified that, in light of the threats, he felt coerced into cooperating and felt that he had no choice. The government's witnesses denied having made such threats.

 Borgers arrived early at his office on Monday to contact Assistant United States Attorney Tim Descenza to arrange for a court-appointed attorney. Descenza told Borgers that attorney April Ferguson would represent Guevara. Ferguson was at that time an Assistant Public Defender who represented federal defendants.

 Hampton and the second officer picked up Guevara at the jail on Monday. While at the jail, Hampton encountered David Hayes, of the Immigration and Naturalization Service, who knows some Spanish. Hayes and Hampton discussed the possibility of Hayes' acting as an interpreter later that day if necessary. Hayes conceded that one of the reasons he agreed to translate was to investigate Guevara's immigration status.

 Guevara was taken to the United States Attorney's office, ostensibly because there was a public defender available for him to talk with there. Hayes rode with Guevara from the jail to the office. Guevara testified that Hayes told him that if he did not cooperate, his residency card would be taken.

 The Memphis United States Attorney's office is in the same building as the federal courthouse. Attorney Ferguson testified that the normal practice would be to bring the defendant before a magistrate judge for appointment of counsel and that on a Monday morning there would be no shortage of magistrates or Spanish interpreters at the courthouse. Ferguson is familiar with this practice because she worked as a federal defender in Memphis from 1987 until November of 1994, when she became a private practitioner.

 Borgers explained to Ferguson that Hayes, an agent of the government, would interpret during her meeting with Guevara. According to Borgers, both Guevara and Ferguson were comfortable with, and agreed to, that arrangement. Ferguson spoke with Guevara for a period of time estimated by the various agents to be between five minutes and half an ...


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