US v. Melgar, 1:96CR00012.

• Decision Date: 30 May 1996
• Docket Number: No. 1:96CR00012.,1:96CR00012.
• Parties: UNITED STATES of America v. Jose Adalberto MELGAR, Defendant.
• Court: U.S. District Court — Eastern District of Virginia

927 F. Supp. 939

UNITED STATES of America v. Jose Adalberto MELGAR, Defendant.

No. 1:96CR00012.

United States District Court, E.D. Virginia.

May 30, 1996.

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Helen Fahey, United States Attorney, Steven Semeraro, Special Assistant United States Attorney, Elisabeth A. Sachs, Special Assistant United States Attorney, Alexandria, Virginia for plaintiff.

Mark Bodner, Fairfax, Virginia, for respondent.

MEMORANDUM OPINION

ELLIS, District Judge.

This is a prosecution of an illegal alien for (i) possession of a firearm by an illegal alien, in violation of 18 U.S.C. § 922(g)(5); (ii) possession of a fraudulent identification card, in violation of 18 U.S.C. § 1546(a); and (iii) possession of marijuana, in violation of 21 U.S.C. § 844. It grows out of a routine traffic stop, followed by a disputed consent search, a subsequent arrest, and an interview of defendant several days later by an Immigration and Naturalization Service ("INS") agent. Defendant moved to suppress the fruits of the search, the arresting officers' impressions of his behavior and demeanor before and during the arrest, and his statement to the INS agent, along with any information the agent obtained later as a result of the statement. This Memorandum Opinion considers the various Fourth, Fifth, and Sixth Amendment issues raised by defendant's motion and sets forth the reasons for its denial.

I.¹

While on routine patrol at approximately 3:00 a.m. November 26, 1995, Officer Alan Lowrey of the Arlington County Police Department noticed an automobile traveling behind him along Route 66 in Arlington County with only one functioning headlight, in violation of Virginia Code § 46.2-1030. Officer Lowrey slowed his marked police cruiser to less than 50 m.p.h. to encourage the car to pass him. The car did not do so, choosing instead to slow down below 50 m.p.h. to stay behind the cruiser. Not until Officer Lowrey had slowed even further did the car finally pass him. This behavior sparked Officer Lowrey's interest,² and he therefore engaged his emergency equipment to signal the car to pull over to the side of the highway. It did so. When he parked on the highway shoulder behind the automobile, Officer Lowrey counted five occupants inside. Accordingly, he called for backup assistance on his radio, but approached the automobile without waiting for this assistance to arrive. As he did so, he noticed that the side windows for both the front and back seats had been rolled down, even though it was a bitterly cold and windy night. This fact alerted Officer Lowrey because, according to his training and experience, it usually signified that the occupants were either (i) attempting to obtain a better angle from which to shoot at him, or (ii) trying to dispel the odor of contraband. A few more steps brought support for the second theory, for Officer Lowrey detected a strong odor of cologne emanating from the vehicle from several feet away. In his experience, such a strong cologne odor signified the type of heavy cologne dose used not for social success, but to mask the odor of illegal drugs.

When he reached the automobile, Officer Lowrey asked the driver, Adolfo Orosco-Gonzalez ("Gonzalez"), for his license and registration. As he did so, he noticed that all five occupants appeared nervous and fidgety until he explained that he had stopped them because of the broken headlight. At that point, the occupants were noticeably relieved, remarking essentially, "Oh, that's why you stopped us." The occupants' responses and demeanor heightened Officer Lowrey's suspicions that they were trying to hide some form of illegal activity. Gonzalez then gave Officer Lowrey his license and vehicle registration, and Officer Lowrey returned to the police cruiser, where he conducted the standard computer checks on the license and registration. While doing so, Officer Lowrey also called for the assistance of Officer David Torpy, a fluent Spanish speaker, because he had heard the vehicle's occupants speaking Spanish among themselves and feared that Gonzalez might not be fluent in English.

By the time the computer checks had been completed, with negative results, Officer Torpy had arrived.³ Officer Lowrey briefed Officer Torpy on the situation, and the two then escorted Gonzalez from his car to the front of Officer Lowrey's cruiser. There, they wrote Gonzalez a warning ticket for the broken headlight and returned his license and registration to him. Speaking in Spanish, Officer Torpy explained the warning ticket. He then asked Gonzalez if there were any drugs or guns in the car and whether the officers might search it. Although Gonzalez denied having any drugs or guns, he did not respond to the search request, and the question itself seemed to make him visibly nervous. This did not escape the officers' notice, for in their experience, Gonzalez's reaction and demeanor were consistent with an effort to conceal illegal activity. Officer Torpy then advised Gonzales that he and his passengers were free to leave, but he also repeated that the officers would like to have permission to search the vehicle. Gonzalez at first refused to allow the search, stating that he thought they could not search the car without a warrant, which he referred to as "piece of paper." Officer Torpy explained that a warrant was not necessary if Gonzalez voluntarily consented to the search, but that Gonzalez and his passengers were still free to leave.

While this discussion was taking place, Officer Lowrey walked back to the passenger side of Gonzalez's car, leaned in, and asked defendant Jose Adalberto Melgar, who was in the front passenger seat, whether there were any guns or drugs in the car. Defendant answered that there were not. Officer Lowrey next asked defendant for identification, and defendant produced a Virginia check-cashing card. Officer Lowrey then returned the card to defendant and rejoined Officer Torpy and Gonzalez at the cruiser, falsely telling Gonzalez that "Jose" — referring to defendant — had said they could search the car. At this point, Gonzalez returned to his car to confer with his passengers.⁴ The two officers followed Gonzalez. Officer Torpy then repeated to all five that they were free to leave, but that the officers would appreciate permission to search the car. Defendant told the others, in Spanish, that they should allow the officers to search the car. He also told the officers in English that they could search, and Gonzalez said "Okay, check my car."

Defendant and the remaining three passengers then exited the automobile to permit the search. After defendant alighted, he took a few steps away from the vehicle before reaching back inside to pick up a jacket on the seat that Officer Lowrey had earlier seen defendant holding. Defendant lifted the jacket a few inches, and seeing this, Officer Torpy encouraged him to take the jacket with him because it was cold and windy. Without responding, defendant hesitated, then dropped the jacket back onto the seat and walked away from the vehicle. Then, while Officer Lowrey was searching the vehicle, Officer Torpy engaged its occupants in friendly conversation about where they had been that evening. Although the others responded to his questions, laughing and joking, Officer Torpy specifically recalled that defendant remained quiet, his attention focused instead on Officer Lowrey's search of the vehicle.

During the car search, Officer Lowrey spotted the jacket on the passenger seat that he had earlier seen Defendant holding. When he lifted the jacket, Officer Lowrey felt the outline of a gun in one of the pockets.⁵ Officer Lowrey immediately alerted Officer Torpy of this fact, and the officers promptly halted the search and frisked all five passengers for additional weapons. They found none. After a computer check revealed that defendant had no registered permit for the concealed weapon found in the jacket, the officers, unaware that he was an illegal alien, arrested him for illegal possession of a firearm. The search incident to defendant's arrest disclosed a small amount of marijuana in defendant's sock and an alien identification card, which Officer Lowrey immediately recognized as a fake.

The next day, November 27, 1995, defendant was arraigned in state court on charges of possession of a concealed firearm without a permit, possession of marijuana, and possession of a fictitious government identification card. At his state arraignment, defendant invoked his Sixth Amendment right to the assistance of counsel, and the state court appointed counsel for him.

Also on November 27, 1995, INS Special Agent Lloyd Miner⁶ was contacted regarding defendant.⁷ Agent Miner's ordinary duties with the INS involve investigating suspected violations of United States immigration laws, and in this connection, he is often called by state law enforcement officers who suspect that they have information about an illegal alien.⁸ Such was the case in this instance. Agent Miner testified that he understood the state officer to be calling him with routine information about a suspected illegal alien. He also recalls telling the state officer that he would interview defendant during the week concerning his immigration status — specifically, his alienage and deportability.

Accordingly, Agent Miner went to the Arlington County Adult Detention Center on November 29 to meet with defendant. At the outset of this meeting, he identified himself to defendant as an INS agent and made clear to defendant that he was interviewing defendant only to discuss defendant's immigration status, not defendant's criminal charges. He then advised defendant in Spanish of his Miranda rights. Defendant declined to invoke those rights, providing a signed waiver form, which Agent Miner read and explained to him in Spanish. In the statement,⁹ defendant admitted that he was born in El Salvador and that both of his parents...