US v. Restrepo
| Decision Date | 06 June 1995 |
| Docket Number | No. 94-CR-551.,94-CR-551. |
| Citation | 890 F. Supp. 180 |
| Parties | UNITED STATES of America v. Christian John RESTREPO, Alberto Caro, and Jose Francisco Guevara, Defendants. |
| Court | U.S. District Court — Eastern District of New York |
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Zachary Carter, U.S. Atty., Brooklyn, NY by Jo-Anne Weissbart, for U.S.
Paul Testaverde, Elmhurst, NY, for defendant Alberto Caro.
Joel B. Rudin, New York City, for defendant Jose Francisco Guevara.
Jerald Levine, Jackson Heights, NY, for defendant Christian John Restrepo.
AMENDED MEMORANDUM AND ORDER
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.
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 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
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...
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