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November 15, 2005.


The opinion of the court was delivered by: YVETTE KANE, District Judge


Before the Court are Defendants' Motions to Suppress Evidence. (Doc. Nos. 46, 49.) The Court held an evidentiary hearing to consider the Motions on October 11, 2005. The Government filed a brief in opposition to both Motions on October 21, 2005 (Doc. No. 67), and Defendants replied in separate briefs (Doc. Nos. 68, 69). The Motions are ripe for disposition and, for the reasons that follow, Defendant Munoz-Villalba's Motion will be denied and Defendant Guerrero's Motion will be granted.

I. Background

  A. Factual Background*fn1

  On June 4, 2005, Pennsylvania State Police Trooper Marlin Foulds was positioned on the westbound lane of Pennsylvania Turnpike Interstate 76, in Upper Allen Township, Cumberland County, conducting speed enforcement. (Transcript of October 11, 2005 hearing, at 5-6.) Trooper Foulds used a radar gun to determine the speed of vehicles traveling past his position on the turnpike. (Id.) The posted speed limit at his location was 65 miles per hour. (Id.) At approximately 6:40 p.m., Trooper Foulds observed a red Nissan Sentra traveling westbound at 85 miles per hour. (Id.) Trooper Foulds activated his emergency lights and siren, stopping the vehicle one mile down the Turnpike at milepost 234. (Id.) Trooper Foulds positioned his vehicle behind the Sentra along the side of the road. (Id.)

  The Sentra displayed a Maryland license plate and contained two occupants, Defendants Efrain Munoz-Villalba and Thomas Guerrero. (Id. at 7, 8, 13.) Munoz-Villalba occupied the driver's seat and Guerrero sat beside him in the front passenger's seat. (Id. at 7.) Trooper Foulds approached Munoz-Villalba and asked for his driver's license, registration, and proof of insurance. (Id.) Munoz-Villalba produced a Washington, D.C. driver's license and a rental agreement for the vehicle. (Id.) According to the rental agreement, Munoz-Villalba was not the renter of the vehicle, nor was he listed as an additional driver. (Id. at 8.) When questioned on this point, Munoz-Villalba stated that his aunt, who was currently visiting Reading, Pennsylvania, had rented the vehicle. (Id. at 9.)

  Trooper Foulds took the license and rental agreement back to his patrol car to verify the information. (Id. at 10.) This check confirmed that the license and registration were valid. (Id.) The rental agreement stated that the Nissan Sentra had approximately 3,200 miles on the odometer when it was rented on May 21, 2005. (Id. at 10, 23.) Upon returning to the vehicle, Trooper Foulds asked Munoz-Villalba to verify the Sentra's current mileage, which was in excess of 6,000 miles. (Id. at 11.) In 14 days, the vehicle had been driven approximately 3,000 miles. (Id.)

  Trooper Foulds asked Munoz-Villalba how many trips he had made to Reading, Pennsylvania. Id. at 12. Foulds responded that he had traveled to Reading four or five times in the past and that his Aunt was visiting the Reading area. (Id.) Munoz-Villalba also stated that he was currently traveling to Reading. (Id.) Trooper Foulds pointed out to Munoz-Villalba that the road he was on traveled away from Reading. (Id.) Munoz-Villalba responded that he was lost. (Id.) During this time, Guerrero sat silently in the front passenger seat. (Id. at 12-13.) Trooper Foulds asked Guerrero for identification. (Id. at 13.) Because Guerrero does not speak English, Munoz-Villalba translated the Trooper's order. (Id. at 13-14, 17.) Guerrero provided a Republic of Panama identification card. (Id. at 14.) "At that point [Trooper Foulds] determined that both [Defendants] are . . . originally from Republic of Panama." (Id.) Trooper Foulds returned to his patrol car to conduct a check on Guerrero's information. (Id.) The National Crime Information Center indicated that no warrants were outstanding for Guerrero. (Id.)

  At approximately 6:45 p.m., Trooper Foulds radioed for assistance, asking for Pennsylvania State Police Trooper Todaro of the Bureau of Criminal Investigation, Drug Law Enforcement Division, Central Interdiction Unit. (Id. at 46-47.) Trooper Todaro also is assigned to a narcotics task force, along with members of the United States Drug Enforcement Agency and the Attorney General's Office, Bureau of Narcotics Investigation. (Id.) Trooper Todaro arrived on the scene ten to fifteen minutes later, while Trooper Foulds wrote a traffic citation for violation of the speed limit. (Id. at 47, 50.) When he arrived, Trooper Todaro positioned his unmarked vehicle behind Trooper Foulds' police car. (Id. at 50.) Both troopers were in uniform. (Id. at 30-31.)

  Trooper Foulds relayed his concerns about the Defendants to Trooper Todaro. (Id. at 51.) Trooper Foulds then asked Munoz-Villalba to exit his vehicle and move to the back of the car, while Trooper Todaro positioned himself on the passenger side of the vehicle, near Guerrero. (Id. at 15-16.) Trooper Todaro explained the citation, returned Defendants' documents, and told Munoz-Villalba that he was free to go. (Id.) Munoz-Villalba asked Trooper Foulds how to get back to Reading and Foulds gave him directions. (Id. at 17, 65.) Trooper Foulds asked Munoz-Villalba if "he had any type of contraband, weapons, stolen property, [or] drugs that may be in his vehicle." (Id. at 17.) When Munoz-Villalba answered in the negative, Trooper Foulds asked Munoz-Villalba if he could search the vehicle. (Id. at 17-18, 54, 76, 86.)

  The testimony at the evidentiary hearing conflicts as to what happened next. Troopers Foulds and Todaro testified at hearing that Munoz-Villalba consented to the search. (Id. at 17-19, 54, 76.) The portion of Trooper Foulds' report read into the record during the hearing states that Munoz-Villalba "seemed nervous. . . . I asked him if all the items in the vehicle were his, and he stated that they were." (Id. at 76.) The troopers then stated that Guerrero was asked to exit the vehicle. (Id. 54-55.) The troopers patted down Defendants and found no narcotics or weapons. (Id. at 77.) Trooper Foulds took the Defendants to a grassy area a few feet away from the vehicle, while Trooper Todaro searched the vehicle. (Id. at 18, 54-55.)

  In contrast to the troopers' testimony, Defendant Munoz-Villalba testified at hearing that he never gave the troopers consent to search the vehicle. (Id. at 86-88.) Rather, when asked if they could search the car, Munoz-Villalba testified that he asked if it was necessary. (Id.) At this point, Munoz-Villalba testified that Trooper Todaro pulled him and Defendant Guerrero to the side of the road, searched them, and told them to sit down. (Id.) Munoz-Villalba testified that, although he was told he was free to go, he did not feel free to leave. (Id. at 89.)

  It is uncontested that Trooper Todaro performed a cursory visual search of the vehicle's interior, beginning with the front driver and passenger areas. (Id. at 55.) Finding nothing of note, Trooper Todaro searched the back seats and the trunk. (Id.) In the trunk, Trooper Todaro found a 9 inch by 9 inch by 14 inch box with a "Conair Fabric Steamer" label on it. (Id. at 56.) Upon opening this box, Trooper Todaro found a large "Ziploc baggy" wrapped in clear white tape. (Id.) Looking through the clear plastic bag, Trooper Todaro observed two individual bags containing brownish powder, which Trooper Todaro suspected was heroin, and a bag containing a "chunky, powdery, tannish substance" also thought to be narcotics. (Id.) Trooper Todaro testified at hearing that when he asked Munoz-Villalba what the bags contained, Munoz-Villalba responded "you know what it is." (Id at 57.) At that point the troopers placed both Defendants under arrest. (Id.) During a search of Guerrero incident to arrest, the State Police discovered a bag containing 30 grams of crack cocaine hidden inside of his sock. (Id. at 59.) Guerrero also had $680 in currency on his person. (Id.) The State Police seized $2,116 in currency from Munoz-Villalba. (Id.)

  The Nissan Sentra was towed to the State Police barracks in Newville, Pennsylvania. (Id. at 57.) After obtaining a search warrant for the vehicle, a more extensive search was preformed. (Id. at 58.) This search resulted in the discovery of a loaded Smith and Wesson 9-millimeter handgun hidden behind the plastic molding beneath the dashboard. (Id.) Tests performed by the State Police on the substances found in the trunk of the Sentra confirmed that the bags contained heroin, methamphetamine, and "crack" cocaine. (Id. at 59.) Defendants' Miranda rights were read ...

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