US v. Echevarria

Decision Date22 February 2010
Docket NumberNo. 08 CR 868(LAP).,08 CR 868(LAP).
Citation692 F. Supp.2d 322
PartiesUNITED STATES of America, v. Juan ECHEVARRIA and Quirino Sanchez, Defendants.
CourtU.S. District Court — Southern District of New York

Telemachus Philip Kasulis, United States Attorney, New York, NY, for Plaintiff.

Glenn Andrew Garber, Glenn A. Garber, P.C., New York, NY, Anthony A. Capetola, Capetola & Doddato, Williston Park, NY, for Defendants.

MEMORANDUM AND ORDER

LORETTA A. PRESKA, Chief Judge.

By motion dated January 16, 2009, defendant Juan Echevarria ("Echevarria") moved to suppress certain physical evidence, and by letter dated July 7, 2009, defendant Quirino Sanchez ("Sanchez") joined in the motion. On September 23, 2009, a hearing was held on the motions. Two New York City Police Department ("NYPD") Officers and a Virginia State Trooper testified for the Government: Officers Michelle Diaz and Steven Irizarry testified about the July 16, 2008 arrest of Echevarria and Sanchez, and Trooper Christopher Murphy testified about the February 10, 2009 arrest of Echevarria. The defendants did not testify although each defendant submitted an affidavit in support of his motion. The only defense witness was Cindy Guivas, a paralegal in Echevarria's lawyer's office, who testified regarding her experience in communicating in English and Spanish with Echevarria.

For the reasons set out below, the motions to suppress are denied.1

A. The Government Case
1. The July 16, 2008 Arrests

Officers Diaz and Irizarry, who have been NYPD officers for four and five years, respectively, were on routine patrol in the Bronx on July 16, 2008. According to the officers, at approximately 2:50 a.m., they responded to a 911 call reporting suspicious males unloading a commercial truck with a "Floral Beauty Express" logo on it, near 2548 Bailey Avenue, a dark and isolated area along the Major Deegan highway. (September 23, 2009 Hearing Transcript ("Tr.") 67, 69, 72, 121, 123-124.) Officers Diaz and Irizarry, who were in uniform, traveling in a marked police car driven by Officer Irizarry, arrived at 2548 Bailey Avenue several minutes after hearing the report of the 911 call. At the scene, they found a truck matching the description and in the location provided in the 911 call. The truck was parked facing southbound on Bailey Avenue. (Tr. 70, 123, 125.) Officers Diaz and Irizarry were the first to arrive at the scene; other police cars, both marked and unmarked, arrived at the scene shortly after Officers Diaz and Irizarry responded to the 911 call. (Tr. 70, 99, 123.)

After parking their police car near the front of the truck and leaving the headlights of their police car on, Officers Diaz and Irizarry got out of their car and began to conduct a sweep of the truck, Officer Diaz walking along the street-side of the truck and Officer Irizarry walking along the curb-side of the truck. (Tr. 74-75, 125-126.) As Officer Diaz walked toward the back of the truck, she observed Echevarria, who was standing near the back of the truck, throw an approximately threefoot long cardboard box to the ground. (Tr. 75-76.) At that time, other officers were approaching where Officer Diaz was at the back of the truck. (Tr. 100.)

After throwing the box, Echevarria began to walk "in a pretty fast manner" away from the truck, in the opposite direction from the direction the truck was facing. (Tr. 77, 126.) Officer Diaz followed Echevarria and told him to stop, after which she directed him, with her hand on his shoulder, to sit on the ground. (Tr. 77-78.)

Immediately thereafter, Officer Diaz took out her flashlight and shined it toward the cardboard box she had seen Echevarria throw on the ground. (Tr. 78.) Other officers, including Officer Irizarry, were looking at the box at the same time. (Tr. 80, 128.) Both Officer Irizarry and Officer Diaz observed that the box was partially open and, in the part of the box that was open, they saw what appeared to be marijuana contained in a clear plastic bag with a few flower stems on top of the plastic bag. (Tr. 80-81, 128-129.) Officer Irizarry also recognized the smell of marijuana coming from the box. (Tr. 128-129.) The box was then fully opened, and Officer Diaz saw several one-gallon plastic bags that appeared to contain marijuana. (Tr. 81.) Officers Diaz and Irizarry then proceeded to place Echevarria under arrest. (Tr. 82.)2

Officer Irizarry next shined his flashlight in the trailer of the truck, which had one of its doors open, to see if anyone was inside the back of the truck. (Tr. 129.) Officer Irizarry then proceeded to the cabin of the truck, where he looked in the window and saw Sanchez, who appeared to be sleeping inside the truck. (Tr. 130.) Officer Irizarry went into the cabin of the truck and escorted Sanchez outside of the truck, after which he handcuffed Sanchez and conducted a quick "patdown search." (Tr. 82-83, 130, 160.) Officer Irizarry did not search the cabin of the truck. (Tr. 161.)

Officers Diaz and Irizarry then contacted their sergeant, who reported to the scene to verify the arrests. (Tr. 83, 131.) The defendants were subsequently transported to the NYPD's 52nd Precinct (the "Precinct"). (Tr. 82, 131.) No search of the trailer or the cabin of the truck was conducted prior to the defendants' being transported back to the Precinct. (Tr. 135.) Following the arrest, boxes in addition to the partially opened box that were outside the truck were placed in a police car and transported back to the Precinct at the same time the defendants were brought to the Precinct. (Tr. 82-83, 133.)3

Officers Diaz and Irizarry, who returned to the Precinct at around the same time the defendants arrived at the Precinct, next prepared paperwork to process the arrests, including beginning to inventory and voucher the contents of the boxes found at the scene. (Tr. 84, 131-133.)

At approximately 8 a.m., Officers Diaz and Irizarry returned to the scene, at which point other law enforcement agents searched the trailer of the truck. (Tr. 87-88, 133.) Officers Diaz and Irizarry did not participate in that search, and no other boxes of marijuana were found during the search. (Tr. 88, 135.)

At approximately noon, Officers Diaz and Irizarry returned to the Precinct to continue to voucher the marijuana found at the scene at the time the defendants were arrested. (Tr. 134-135.) The boxes had been secured at the Precinct during the time Officers Diaz and Irizarry had returned to the scene. (Tr. 88.) Prior to completing the voucher process, Officer Diaz met with Alcohol, Tobacco, Firearms and Explosives ("ATF") Agent Michael Zeppieri and told him she had seen Echevarria at the back of the truck toss a box to the ground and that the box was open and showed a clear plastic bag of marijuana. (Tr. 111, 115.)

Officers Diaz and Irizarry found over 40 one-gallon clear plastic bags of marijuana in the boxes they vouchered. (Tr. 88, 136; GX-6.) Officers Diaz and Irizarry then transported the marijuana to the police laboratory in Queens and completed their shift for the day. (Id.)

2. The February 10, 2009 Arrest

Trooper Christopher Murphy, a Virginia State Trooper who has been a law enforcement officer for approximately thirteen years and is the lead instructor for the Virginia State Police on criminal interdiction, testified for the Government regarding Echevarria's February 10, 2009 arrest. (Tr. 19.) According to Trooper Murphy, at approximately 1:15 p.m. on February 10, 2009, while working on Interstate 95 in Greensville County, Virginia, he pulled over a commercial truck driven by Echevarria for traveling too closely behind another vehicle, in violation of Virginia Code Section 46.2-816, which requires that drivers maintain a "reasonable and prudent" distance behind other vehicles. (Tr. 25-26, 54.) Based on Trooper Murphy's training and experience, he testified that it would take approximately 300 feet for a commercial truck like the one Echevarria was driving to stop if it was going the speed limit of 65 miles per hour. (Tr. 26.) Trooper Murphy observed Echevarria's truck following approximately 15 feet behind another commercial vehicle that was hauling logs. (Tr. 25-26.) Trooper Murphy's attention was drawn to Echevarria's truck because the truck company, ANAM, was a company from which Trooper Murphy had made two previous seizures of contraband. (Tr. 26.) Trooper Murphy had spoken to an owner of the ANAM truck company, Oscar Alfonso, after the two previous seizures, who told Trooper Murphy that Mr. Alfonso "was very concerned about his drivers being involved in illegal activity" and that Trooper Murphy could "feel free to stop and search any ANAM truck that was owned or leased by ANAM." (Tr. 26-28.) However, Trooper Murphy did not believe he could pull over Echevarria's truck based on Mr. Alfonso's statements alone. (Tr. 27-28.)

When Trooper Murphy initiated the traffic stop, a video camera located near the rear view mirror in his police car was activated. (Tr. 31.) During the suppression hearing, the Government played the video recording (with audio), from the beginning of the video until the point that Echevarria provided oral consent to Trooper Murphy to search his truck. (Tr. 32-39; GX-1.) Based on what can be seen and heard in the video, and on Trooper Murphy's testimony, Trooper Murphy and

Echevarria engaged in a conversation in English for approximately fifteen minutes during which each appeared to understand what the other was saying based on both their words and their actions. At no time did Echevarria state that he did not understand what Trooper Murphy was saying. According to Trooper Murphy, he spoke to Echevarria in English because Echevarria responded to his questions in English and because he understood federal rules related to maintaining a commercial driver's license ("CDL") to require that CDL-holders be able to communicate effectively in English. (Tr. 34-35.)

At the beginning of the traffic stop, after Trooper Murphy signaled for Echevarria...

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