The opinion of the court was delivered by: Judge McClure
On December 11, 2008, a Grand Jury sitting in the Middle District of Pennsylvania handed down a three-count indictment against the defendant. On April 23, 2009, a four-count superseding indictment was returned charging the defendant, Levi Daniel Morales-Ruiz, with Distribution of a Controlled Substance (Count I), Possession of a Firearm by an Illegal Alien (Count II), Possession of a Firearm During a Drug Trafficking Crime (Count III), and Criminal Forfeiture (Count IV). Upon motion of the government, on July 2, 2009, this Court ordered the dismissal of Count IV from the indictment. As a result, only Counts I through III are currently pending against the defendant.
The defense filed a "Motion to Suppress Evidence and Dismiss the Indictment" and a supporting brief. (Rec. Doc. Nos. 29 and 30). We suspended further briefing, and held a suppression hearing on August 19, 2009. As a result of the hearing, the government filed an opposing brief on September 24, 2009. (Rec. Doc. No. 69). Defendant filed a reply brief on October 13, 2009. (Rec. Doc. No. 73).
Now, therefore, for the following reasons we will deny the "Motion to Suppress Evidence and Dismiss the Indictment."
On August 19, 2009, an evidentiary hearing was held. Pennsylvania State Troopers Jesse Moyer and Derek Pacella testified. The court found the testimony of both troopers to be credible. Troopers Moyer and Pacella were the troopers at the scene on the day in question.
The facts are taken from the testimony presented at the evidentiary hearing.*fn1
On November 5, 2008, Troopers Moyer and Pacella were patrolling Interstate Route 80 on "SHIELD" detail. SHIELD stands for Safe Highways Initiative Through Effective Law Enforcement and Detection. Trooper Moyer was driving the squad car and Trooper Pacella was the recorder.
At around 1:30 p.m., the troopers observed a disabled vehicle in the center median of Route 80, at approximately mile marker 167 in Centre County. The hood of the vehicle, a red Kia Sportage, was raised as was the vehicle's end gate. Trooper Moyer testified that the driver's side door may have been open as well, but he could not recollect with certainty that that was the case. Trooper Moyer could see a male standing outside the vehicle near the engine, apparently attempting to get the vehicle running. The male standing with the vehicle was the defendant, Levi Daniel Morales-Ruiz.
The troopers activated the lights on their patrol car for safety reasons and pulled into the center median behind defendant's vehicle. Trooper Pacella called in the traffic stop as Trooper Moyer exited the squad car to assist the defendant. Trooper Moyer attempted to ask the defendant what the problem was with the vehicle, but the language barrier was apparent immediately. The defendant pointed to the engine and was able to communicate that the radiator may have overheated, as he was carrying a jug of water.
Trooper Moyer then asked, as he does in every encounter, for identification: license, registration, and insurance. Trooper Moyer stated that it is required for him to request identification in every case, including all disabled motorists. Trooper Moyer testified that when he asked the defendant for identification, the defendant became very nervous, looked at the ground and replied that he did not have any identification. When pressed, the defendant produced a Nicaraguan identification card.
At this point, Trooper Pacella walked over and joined the conversation. Trooper Pacella was better versed in Spanish, so he took over the dialogue. Trooper Pacella asked the defendant if he had a passport, a driver's license, an international driver's license, a visa, registration, or an insurance card. The defendant was not able to produce these documents. The defendant conveyed to Trooper Pacella that he had overstayed his visa by three months. These responses caused Trooper Moyer to suspect that the defendant was in the country illegally. Trooper Pacella asked the defendant if he was in the United States legally. The defendant smiled and looked at the ground. Trooper Moyer became concerned that the defendant was so nervous that he would run. Trooper Moyer felt this way because the defendant seemed to scan the area looking for an exit route.
On cross-examination, Trooper Moyer acknowledged that the defendant was not free to leave because he had not yet produced anything showing that he could legally drive on Pennsylvania roadways. Trooper Moyer also indicated that the defendant eventually produced a registration card for the vehicle, but the registration was not in the defendant's name. Trooper Pacella testified that, when he called in the traffic stop, he learned the vehicle was not registered to the defendant. It is not clear from the testimony if the troopers learned the car was registered to someone other than the defendant because the defendant did produce a registration card or because Trooper Pacella had called in the license plate. It is also not clear from the testimony at what point the defendant produced each of these items and at what point the Trooper felt defendant was not free to leave. It is clear from the testimony that when the defendant was asked if he was in the country legally he had not yet been Mirandized.
Trooper Pacella told the defendant that he would be detained and taken to the station to be "Live Scanned."*fn2 Trooper Moyer testified that live scanning is the most reliable method of determining someone's identity for purposes of nationality; it can only be done in the barracks, not in the squad car. The defendant put his hands behind his back, Trooper Pacella handcuffed the defendant, and the defendant was placed in custody and seated in the rear of the patrol car.
Because the defendant was unable to provide any documents, other than his Nicaraguan ID card, regarding his identity, and because he admitted that he had overstayed his visa by three months, Trooper Pacella was suspicious that the defendant was in the United States illegally. While in the vehicle with the defendant, Trooper Pacella telephoned Immigration and Customs Enforcement ("ICE") to attempt to determine the defendant's immigration status. Trooper Moyer testified that the defendant would not have been released until they determined if the defendant was an illegal alien.
The troopers decided that it would not be safe for the vehicle to remain in its position in the center median of Route 80, so they decided to have it towed. Trooper Pacella remained with the defendant in the patrol car.
Trooper Moyer returned to defendant's vehicle to secure the vehicle and to conduct an inventory search prior to the tow truck's arrival. Securing the vehicle involves physically rolling all windows up, locking all doors, and obtaining the keys. An inventory search is also undertaken so that anything of value, such as money, wallets, jewelry, etc., is taken out of the vehicle before the vehicle is sent with the tow truck to a tow lot. If any items of value are found by the troopers inside a vehicle, those items are logged in a property record and stored at the state police barracks until the owner can retrieve them.
At this point in the encounter, the passenger side front-door of the vehicle was open because the defendant had opened it while looking for his identification card. Trooper Moyer began to secure the vehicle through the passenger side front- door. According to Trooper Moyer, the vehicle was "an absolute mess." Trash and clothes were strewn throughout the vehicle, and clothes were stacked as high as the back seats. Trooper Moyer could see a black handgrip of a pistol between the driver's seat and the center console. The front part of the pistol, also known as the slide, was covered by a pair of bloody underwear. Trooper Moyer attempted to secure the firearm by ...