The opinion of the court was delivered by: David N. Hurd, United States District Judge
MEMORANDUM-DECISION and ORDER
Defendant Eric Gagnon ("Gagnon" or "the defendant") was charged in a
two-count superseding indictment, filed on September 13, 2002, with
conspiracy to possess with intent to distribute, and distribution of,
marijuana in violation of 21 U.S.C. § 846, and attempt to possess
with intent to distribute marijuana in violation of 21 U.S.C. § 841,
846. The defendant, as part of an omnibus motion, moved to suppress the
evidence seized from his tractor trailer. After narrowing the issue to
whether the defendant voluntarily consented to the search of his tractor
trailer, a suppression hearing was held on August 15, 2002 and
August 23, 2002 in Utica and Albany, New York.*fn1 Decision was
The following are the findings of fact, taken from the two-part hearing
on Gagnon's motion to suppress evidence. All citations herein are to the
transcript of that hearing.
Gagnon is from the predominantly French-speaking Canadian province of
Quebec. (Tr., p. 163). He grew up in a French-speaking household, and
attended French-speaking schools until he was sixteen years of age, at
which time he dropped out. (Tr., pp. 164-65, 201). He had no formal
English training (Tr., pp. 165, 202).
At the age of eighteen, Gagnon began a career as a commercial truck
driver. (Tr., p. 175). He has been a truck driver for the past sixteen
years, with the exception of approximately a five-year span of time in
which he lived exclusively in Quebec. (Tr., pp. 175, 199). His employment
as a truck driver very occasionally brings him into the United States.
(Tr., pp. 175, 204). Though he obviously has difficulty understanding and
expressing himself in the English language, he has been able to pick up
small tidbits of the language at American truck stops. (Tr., pp. 165,
Gagnon entered the United States a very short time prior to April 4,
2002. (Tr., p. 193). One night he stayed in a Long Island, New York hotel
room. (Tr., p. 194). His conversation with the hotel clerk was in
English, but it is unclear whether such conversation simply consisted of
him just handing his commercial driver's license to the clerk. (Tr., p.
195). At some point, he ate a meal at a McDonald's restaurant. (Tr., p.
196). He ordered a "number five" meal from the picture menu above the
cash registers. (Tr., p. 196). The meal, number, and picture of the
"number five" he ordered correspond with those found in McDonald's
restaurants in Quebec, except that the menus in Quebec are in French.
(Tr., pp. 196, 202).
On April 4, 2002, Daniel Simoneau ("Simoneau") was arrested as he
attempted to enter the Port of Champlain entry into the United States.
(Tr., p. 113). Found in Simoneau's tractor trailer were 144 pounds of
marijuana. (Tr., p. 113-14). Simoneau informed United States Customs
Service agents that the tractor trailer was to be delivered to a person
named "Eric Gagnon" at the Fox Run restaurant and motel off Exit 21B of
the New York State Thruway. (Tr., p. 114). Simoneau gave the agents a
description of the vehicle that Gagnon was supposed to be driving. (Tr.,
United States Custom Services Special Agent Todd Harris ("Agent Harris"
or "Harris"), working in Albany, New York, received a call from his
supervisor "somewhere around" 6:00 p.m. on April 4, 2002, informing him
of Simoneau's claims. (Tr, p. 113). Agent Harris passed the information
to New York State Police Sergeant Anthony Miserendino ("Sgt. Miserendino"
or "Miserendino"), who in turn passed the information on to the New York
State Police trooper who was responsible for patrolling that section of
the Thruway, Trooper Roy Swan ("Tr. Swan" or "Swan"). (Tr., p. 8). Tr.
Swan was informed that the tractor trailer that "Eric Gagnon" was
supposed to be driving had the word "Lanfort" written on the side of the
trailer. (Tr., p. 9).
At approximately 7:20 p.m. on that same night, Tr. Swan called Sgt.
Miserendino back and informed him that a tractor trailer matching the
description had just pulled into the Fox Run rest area off Exit 21B.
(Tr., pp. 114, 166). Miserendino instructed Swan to maintain visual
surveillance until he and Harris arrived at the rest area. (Tr., p. 9).
It was an eighteen to twenty mile trip from the Albany station where
Miserendino and Harris were to the rest area off Exit 21B. (Tr., p.
57-58). It took them a total of fifteen to twenty minutes from the time
Swan called to the time they arrived at the rest area. (Tr., p. 131).
Meanwhile, Gagnon, upon arrival at the rest area, wandered around the
complex*fn2 looking for a jacket he had left there the last time he had
stopped at Fox Run. (Tr., p. 166). He found the waitress who was there
the previous time, when he lost the jacket, and asked her, in what little
English he knew, and with signals and signs, if she had the jacket.
(Tr., p. 177). He then went into the motel registration area of the
complex, and spoke to clerk Daniel Sullivan. (Tr., p. 83). Gagnon had
rented a room at the motel before, and had been to the complex upwards of
fifty times. Whenever someone checks in at the motel, a registration card
is filled out. On the card, the only information the clerk requires the
truck driver to fill in is his name, address, and the company for which
he works. Gagnon can read the English word "name," and the words
"address" and "company" are the same or near the same in English and
French. (Tr., pp. 179-80). According to the clerk, Gagnon's English was
"broken," but he was personally aided in understanding the defendant
because, through his employment as a motel clerk, he had dealt with many
Canadian truck drivers who spoke the same way. (Tr., pp. 83-84).
In the past, when Gagnon had rented rooms at the motel, the usual
practice was that he would give the clerk working that day his commercial
driver's license and the clerk would fill out a registration card. (Tr.,
p. 179). On the day in question, he
was asked where he was from, and he
handed the clerk his commercial driver's license. (Tr., p. 178). He
filled out the required fields on the card. The week before the
suppression hearing, the clerk was requested, at the behest of the United
States Attorney's Office, to try and locate Gagnon's registration card.
(Tr, p. 151). The clerk spent two days looking for the card, but was
unable to locate it. (Tr, p. 88). After the registration card was filled
out, and Gagnon had been shown and paid the room rate, the clerk gave him
the keys to the room. (Tr., p. 92). The defendant went to his motel room
to make sure it was clean, and then proceeded into the restaurant for
dinner. (Tr., pp. 166, 182).
Sgt. Miserendino and Agent Harris arrived at the rest area between 7:40
and 7:45 p.m. They located the only vehicle matching the description, a
2002 tractor trailer with the word "Lanfort" written on the trailer,
parked in the rear of the rest area parking lot. (Tr., p. 9-10). By or
around this time, Miserendino and Harris were joined by Tr. Swan and
three other New York State Police troopers. (Tr., p. 11). All officers
except Harris were in uniform, with sidearms holstered. (Tr., p. 11).
Harris was in civilian clothes, with his weapon concealed under a black
leather jacket. (Tr., p. 122). Miserendino at some point shined his
flashlight into the cab area of the truck, and tried to open the driver's
side door, which was locked. (Tr., p. 13). Opening the passenger's side
door of the cab "could have been tried by another officer." (Tr., p.
64). The officers determined the truck was not running, as many others in
the lot were, and that there was no one inside. (Tr., p. 10). The group
was at the truck for a total of at least ten minutes. (Tr., p. 133).
At or just before 8:00 p.m., Sgt. Miserendino, Agent Harris, and a
trooper walked into the building housing the motel registration area.
(Tr., p. 13). Of the three that remained behind, one stayed by the
tractor trailer and the other two sat in police cars in the parking lot.
(Tr., p. 65). Miserendino, Harris, and the trooper were standing in a
hallway outside the motel registration area for approximately seven to
fifteen minutes, discussing what they should do. (Tr., p. 101). At this
point, the clerk, Sullivan, came into the hallway and asked if they needed
help. (Tr., p. 94). Miserendino asked him if he had any contact with an
"Eric Gagnon." (Tr., p. 14). Sullivan informed him that Gagnon had just
checked in a short time ago. (Tr., pp. 14, 96). The clerk brought the
officers over to the registration desk and showed them a copy of a master
sheet with all the names and room numbers of guests checked into the
motel. (Tr., p. 14, 96). The officers did not ask to see ...