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United States v. Escobar

April 27, 2006

UNITED STATES OF AMERICA
v.
MARIANO ESCOBAR



The opinion of the court was delivered by: (Judge Conner)

MEMORANDUM

Presently before the court is a motion filed by defendant, Mariano Escobar ("Escobar"), to suppress evidence obtained during a consensual search of a vehicle he had rented. Escobar argues that he did not voluntarily consent to the search and that the consent of the driver of the vehicle, co-defendant Alan M. Nunez ("Nunez"), was not valid against him. For the reasons that follow, the court will deny the motion to suppress.

I. Findings of Fact*fn1

On December 11, 2005, Pennsylvania State Police Trooper Jeffrey S. Kolodzi ("Trooper Kolodzi"), stopped Nunez for driving a U-Haul vehicle*fn2 at speeds in excess of the posted limits along Interstate 81. (Doc. 42 at 4-5.) Trooper Kolodzi parked his vehicle behind the U-Haul on the right shoulder of the road and approached the passenger side window to request Nunez's license and registration. Nunez and Escobar produced their driver's licenses, the vehicle rental agreement, and an insurance card. (Doc. 42 at 6-8.) Escobar was named on the rental agreement as the renter of the U-Haul; Nunez was not listed as an authorized driver. (Doc. 42 at 9, 33.)

Trooper Kolodzi requested that Nunez step out of the U-Haul and go to the back, passenger side of the vehicle, where he proceeded to ask Nunez a few standard questions. (Doc. 42 at 14.) Nunez's responses were vague and inconsistent. Nunez initially informed Trooper Kolodzi that his belongings were in the cargo area of the U-Haul because he was moving and that the defendant had flown from Massachusetts to North Carolina to help him move. However, Nunez could not immediately provide the name of his passenger and later gave an incorrect name. Nunez ultimately explained that he had known the passenger for approximately three years and that he had met the defendant through his sister. At one point, Nunez said he was moving to New York. He later indicated that he was moving in with his sister in New Jersey, but he was unable to provide an address. He hesitated when asked his sister's name and subsequently indicated it was Freda; nevertheless, he was unable to provide her last name to Trooper Kolodzi. In addition, Nunez was unable to provide the name, address, city, or phone number of his employment. Trooper Kolodzi asked Nunez why the U-Haul was rented in Georgia. Nunez responded that he had moved to Georgia despite his previous statements that his residence was in North Carolina and that he did not leave North Carolina for any extended period while living there. (Doc. 42 at 14-17, 52-54, 61-63.) These numerous inconsistencies aroused Trooper Kolodzi's suspicions, prompting him to request backup from Trooper Tony Todaro ("Trooper Todaro"), an officer in one of drug units. (Doc. 42, Gov't Ex. 5 at 13.)

Because Escobar indicated that he did not speak English, Trooper Kolodzi requested a Spanish interpreter. (Doc. 42 at 8, 14.) Trooper Bryan R. Henneman ("Trooper Henneman"), named on a State Police Spanish interpreter list,*fn3 responded to the request. (Doc. 42 at 73; Doc. 42, Gov't Ex. 4.) Using Trooper Henneman as interpreter, Trooper Todaro questioned Escobar about the nature of the trip and the contents of the U-Haul. (Doc. 42 at 74-75.) According to Trooper Henneman, Escobar responded that he had known Nunez for approximately fifteen years and that they had met in Puerto Rico. Escobar informed the troopers that some clothing and a bed in the cargo area belonged to him. (Doc. 42 at 75.)

After Troopers Henneman and Todaro questioned Escobar, Trooper Kolodzi returned all of the documentation and issued a warning for speeding to Nunez. (Doc. 42 at 17-19; Doc. 42, Gov't Ex. 1.) Trooper Kolodzi informed Nunez, who was seated in the driver's seat of the U-Haul, that he was "free to leave."*fn4 (Doc. 42 at 18.) Trooper Kolodzi started to walk away from the passenger side, but a few seconds later reapproached and asked Nunez if he could ask him a few more questions. Nunez responded "yes" and, without prompting, exited the U-Haul and walked to the back of the vehicle. (Doc. 42 at 18-20, 60.)

Trooper Kolodzi asked Nunez some questions to clarify a few of his earlier, inconsistent responses. The trooper also asked Nunez if there was anything illegal in the U-Haul, to which Nunez replied "no." (Doc. 42 at 20-21.) Finally, Trooper Kolodzi asked Nunez if he would give consent to search the entire truck, and informed Nunez that he could refuse the request. Nunez agreed to the search (Doc. 42 at 22) and also signed a consent form written in Spanish,*fn5 which was titled "Waiver of Rights and Consent to Search" (Doc. 42, Gov't Ex. 2). The form, as translated in English, provides, in part:

I, HAVE BEEN REQUESTED BY OF THE PENNSYLVANIA STATE POLICE TO GIVE MY CONSENT FOR POLICE OFFICERS TO SEARCH PLACE(S), ITEM(S), OR VEHICLE(S) DESCRIBED ABOVE FOR THE ITEMS DESCRIBED ABOVE. I HAVE BEEN TOLD THAT I DO NOT HAVE TO GIVE MY CONSENT. I UNDERSTAND THAT I HAVE THE RIGHT TO REFUSE THIS REQUEST, AND THAT THE POLICE MAY NOT BE ABLE TO CONDUCT THIS SEARCH WITHOUT A SEARCH WARRANT UNLESS I GIVE MY CONSENT. NONETHELESS, I VOLUNTARILY GIVE MY CONSENT TO THE POLICE TO CONDUCT THIS SEARCH.

No one, including anyone from the Pennsylvania State Police or any other police officer, has threatened me in any way, nor has anything been promised to me in return for giving my consent to conduct this search. (Doc. 42, Gov't Exs. 2-3.) Nunez printed and signed his name as the consenter and provided his North Carolina address on the consent form. The following information was also filled in on the form: (1) the vehicle to be searched; (2) the items to be searched for and seized, if found; (3) Nunez's indication that he owned the places, items, or vehicles to be searched; and (4) Trooper Henneman's name and signature as a witness. (Doc. 42 at 100-01; Doc. 42, Gov't Exs. 2-3.)

Following Nunez's consent to the search, Trooper Henneman approached Escobar. When asked if there was a problem with the troopers looking in the truck, Escobar replied "no." Trooper Henneman then had Escobar examine and read the same consent form that Nunez had signed.*fn6 (Doc. 42 at 78-79.) The above-mentioned information was already filled in on the form before Trooper Henneman presented it to Escobar. (Doc. 42 at 128.) After providing Escobar with sufficient time to examine the consent form, Trooper Henneman asked Escobar if he understood the form. Escobar replied "yes." Trooper Henneman then asked Escobar to sign the consent form. (Doc. 42 at 78-79, 110.) Escobar printed and signed his name on an empty "witness" line on the form. (Doc. 42 at 79; Doc. 42, Gov't Exs. 2-3.)

After the troopers obtained the oral and written consent, Nunez opened the unlocked, back door of the U-Haul to the cargo area. (Doc. 42 at 48, 128.) The troopers had radioed for a "drug dog." The dog, after being placed in the cargo area, signaled to the troopers its detection of the scent of narcotics. (Doc. 42 at 66; Doc. 42, Gov't Ex. 5 at 47.) Trooper Todaro searched the area where the dog alerted and discovered a duffle bag containing thirty-three kilograms, or "bricks," of what was believed, and later confirmed, to be cocaine.*fn7 (Doc. 42, Gov't Ex. 5 at 18-20, 48-49; Doc. 42 at 23; Doc. 42, Gov't Ex. 6.) The troopers immediately took Nunez and Escobar into custody.*fn8 (Doc. 42 at 24.)

Escobar was later charged by federal indictment with: (1) conspiracy to manufacture, distribute, and possess with intent to distribute cocaine hydrochloride, (2) the manufacture, distribution, and possession with intent to distribute cocaine hydrochloride, and (3) possession of a firearm in furtherance of drug trafficking.*fn9

The instant motion to suppress was filed in February 2006. In it, Escobar argues that the troopers' continued questioning after returning their documentation constituted an unlawful seizure, that he did not voluntarily consent to the search, and that Nunez's consent was not valid against him. A hearing was held on March 15, 2006, during which Troopers Kolodzi and Henneman testified and offered a substantially consistent, candid, and credible version of the events at issue. Escobar also took the witness stand, but presented a significantly less clear-and less ...


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