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.
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
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