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November 6, 2002


The opinion of the court was delivered by: David N. Hurd, United States District Judge



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 reserved.


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, 202).

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., p. 114).

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).

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 ...

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