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United States v. Hernandez-Bourdier

United States District Court, W.D. Pennsylvania

October 23, 2017



          Joy Flowers Conti Chief United States District Judge

         Pending before the court are motions to suppress evidence and statements (ECF Nos. 66 and 69) filed by defendants Habys Omar Meran ("Meran") and Juan Wilquin Hernandez-Bourdier ("Hernandez") (collectively, "defendants") in the above-captioned case. On October 11, 2016, a federal grand jury in the Western District of Pennsylvania returned a two-count indictment charging defendants with conspiracy to distribute and possess with intent to distribute one kilogram or more of heroin in violation of 21 U.S.C. § 846 and possession with intent to distribute one kilogram or more of heroin in violation of 21 U.S.C. §§ 841(a)(1) and 841(b)(1)(A)(i). (ECF No. 1.) On March 29 and 31, 2017, Meran and Hernandez each filed a motion to suppress evidence and statements (ECF Nos. 66 and 69.) The court held a hearing on defendants' motions on June 8, 2017. The official transcript has been filed of record. (ECF No. 86.)

         During the hearing, the court heard testimony from Pennsylvania State Police ("PSP") Corporal Reed Grenci ("Corporal Grenci") and PSP Trooper Robert Warman ("Trooper Warman"). In addition, the government submitted six exhibits which were admitted into evidence: (1) CD recording from Corporal Grenci's Mobile Video Recorder ("MVR") (Ex. 1);(2) CD recording from Trooper Warman's MVR (Ex. 2); (3) transcript of the recording from Corporal Grenci's MVR (Ex. 3); (4) transcript of the recording from Trooper Warman's MVR (Ex. 4); (5) transcript of Spanish translation of conversation between Meran and Hernandez while seated in Trooper Warman's patrol vehicle (Ex. 5); and (6) CD of video showing the Troopers opening the trap on the van (Ex. 6). (ECF No. 86 at 27-29, 206-208.)

         The parties filed proposed findings of fact and conclusions of law on the grounds raised in the motions to suppress: (1) the legality of the traffic stop, including whether it was unlawfully extended; (2) the voluntariness of Meran's consent to search and whether the search exceeded the scope of consent; and (3) alleged violations of the Miranda requirements. Meran and Hernandez respectively filed their proposed findings of fact and conclusions of law on September 19 and 21, 2017. (ECF Nos. 90 and 92.) The government filed its proposed findings of fact and conclusions of law on September 20, 2017. (ECF No. 91). Upon consideration of the parties' submissions and the evidence and testimony presented at the suppression hearing, the court makes the following findings of fact and conclusions of law:

         I. Findings of Fact

         1. Both Corporal Grenci and Trooper Warman are assigned to the Safe Highways Initiative for Effective Law Enforcement and Detection ("SHIELD") unit in the PSP's Bureau of Drug Law Enforcement. (ECF No. 86 at 31, 167.) Troopers assigned to the SHIELD unit are responsible for full-time criminal highway interdiction, which involves patrolling major highways to intercept individuals involved in any type of criminal activity. (Id. at 33, 34.)

         2. Corporal Grenci is a SHIELD supervisor and an instructor in the unit. (Id. at 31, 35.) He has approximately 450 hours of interdiction training, including attending conferences throughout the United States and networking with other interdiction officers to discuss current tactics used in narcotics smuggling. (Id. at 35-36.) Corporal Grenci has conducted approximately 30 major seizures of contraband. (Id. at 35, 81.)

         3. On January 26, 2016, Corporal Grenci was in an unmarked police vehicle positioned in an emergency crossover on Interstate 80 in Mercer County, Pennsylvania. (Id. at 36, 39.) Corporal Grenci was performing his daily criminal interdiction duties by watching eastbound traffic for traffic violations or certain driving behaviors that drew his attention. (Id. at 36-37.)

         4. Corporal Grenci's patrol vehicle is equipped with a MVR, which is positioned in the middle of the windshield. (Id. at 38-39.) The MVR begins recording when a trooper activates the vehicle's emergency lights. (Id. at 38.) A microphone clipped to Corporal Grenci's uniform records the audio portion of a traffic stop. (Id. at 39.) Trooper Warman confirmed that he has the same equipment. (Id. at 168-69.)

         5. Corporal Grenci explained that the MVR camera accurately records what occurs; however, there are some limitations on what the MVR can capture because of its position in the vehicle, as opposed to what Corporal Grenci can see in real time from his vantage point. (Id. at 132.)

         6. Corporal Grenci acknowledged that the MVR recording of the traffic stop at issue in this case (Ex. 1) is a fair and accurate depiction of what occurred. (ECF No. 86 at 133.)

         7. Corporal Grenci observed a red or maroon Honda Odyssey minivan travel past his position at approximately the speed limit of 65 to 70 miles per hour. (Id. at 40, 45, 130.) Corporal Grenci observed that the driver's side window was tinted along with the other windows in the back, which precluded him from clearly viewing the driver. (Id. at 40, 159.) The recording from Corporal Grenci's MVR confirms that the minivan had dark tinted windows. (Ex. 1 at:01.)

         8. Corporal Grenci noticed the van was registered in Pennsylvania, and, under Pennsylvania law, window tint must allow 70 percent light transmittance. (ECF No. 86 at 41.) Based on his training and experience, Corporal Grenci recognized that the window tint on the van was illegal. (Id.) Accordingly, Corporal Grenci pulled out onto the highway to pursue the van. (Id.)

         9. When Corporal Grenci pulled onto the highway, the van was in the right lane of travel behind a tractor-trailer truck. (Id. at 42.) As Corporal Grenci followed the van, he observed it move to the left lane without signaling. (Id.). The van was approximately 200 to 300 yards in front of Corporal Grenci when it made the unsignaled lane change. (Id. at 132, 154.) The recording from Corporal Grenci's MVR does not show any visible blinking light or signal on the left rear of the van prior to or during its move from the right lane of the highway to the left lane. (Ex. 1 at:20-:30.)

         10. Corporal Grenci observed the van pass two tractor-trailer trucks and saw the van hit the yellow line two or three times. (ECF No. 86 at 42.) After passing the second truck, the van moved back into the right lane; this time signaling before doing do. (Id.)

         11. After observing the window tint and the unsignaled lane change, Corporal Grenci activated the lights on his vehicle, and the van pulled over to the right shoulder of the highway. (Id at 45.)

         12. Prior to approaching the van, Corporal Grenci checked the license plate, which appeared to be valid and indicated the van was registered in Pennsylvania to Angel Rameu. (Id. at 47, 93.) Corporal Grenci's registration check confirmed that the van was not identified as having been stolen. (Id. at 94.)

         13. Corporal Grenci approached the van on the passenger side, the windows were down, and he saw a male driver and a male front seat passenger inside. (Id. at 47-48.)

         14. Corporal Grenci identified the driver as Habys Meran by his New York driver's license and the passenger as Juan Hernandez-Bourdier by a Dominican Republic identification card. (Id. at 49, 95, 97.)

         15. Corporal Grenci advised Meran that the reasons for the traffic stop were illegal window tint and failing to use a turn signal when making a lane change. (Id. at 49.)

         16. Corporal Grenci asked Meran if the van was his vehicle, and Meran replied that his friend was the owner. (Id. at 95.)

         17. Corporal Grenci noticed that Meran spoke with an accent and observed that his primary language apparently was not English. (Id. at 97, 109.) Corporal Grenci asked Meran whether he speaks English, and Meran replied, "a little." (Ex. 3 at 1.) Corporal Grenci recalled that Meran told him once during their conversation that his English was not very good. (Id. at 4; ECF No. 86 at 109.) Corporal Grenci also ascertained that Hernandez's first language was not English. (ECF No. 86 at 103.)

         18. At this point in the traffic stop, Corporal Grenci was aware of the following: window tint is common on vehicles used to transport contraband; Interstate 80 is a known major drug corridor; the van was registered in Philadelphia, Pennsylvania, to Angel Rameu, not Meran, who possessed a New York driver's license; and Philadelphia and New York are major source and consumption areas for drugs. (Id. at 43, 44, 50, 51.)

         19. While positioned at the passenger side window, Corporal Grenci noticed a single key in the ignition. (Id. at 50.) In Corporal Grenci's experience, a single key may signify that the vehicle is a "third-party vehicle, " meaning that the owner is not the same person who is driving it. (Id.) Corporal Grenci explained that third-party vehicles are commonly used by smugglers, so that the individuals who are in the vehicle can claim they have no knowledge of its contents. (Id. at 51.)

         20. Corporal Grenci observed an energy drink, which was significant to him because smugglers attempt to travel a long distance as quickly as possible. (Id. at 53-54.) At some point, he noticed air fresheners in the van, which he explained are often used to mask the odor of narcotics. (Id. at 53, 119.) Corporal Grenci also knew that during the previous year, two other SHIELD members conducted stops on Honda Odyssey vans that contained a trap in the rear bumper area. (Id. at 46, 118.)

         21. Corporal Grenci conceded that many of the above-referenced items are innocent standing alone, but he noted they collectively represent significant indicators of criminal activity based on his experience in highway interdiction. (Id. at 53.)

         22. After making the foregoing observations, Corporal Grenci gave a thumbs up signal to the MVR to indicate that he "knew [he] had something at that point." (Id. at 55.)

         23. Corporal Grenci asked Meran to exit the van so that he could hear him better, but also because he wanted to investigate further. (Id. at 106.) Meran complied with Corporal Grenci's request. (Id. at 55.)

         24. Corporal Grenci asked Meran whether he had any weapons, and Meran replied that he did not. (Id. at 56.) Meran agreed to Corporal Grenci's request to pat him down and no weapons or drugs were found on him. (Id. at 56, 106.)

         25. Corporal Grenci asked Meran who owned the van, and Meran responded that it belonged to a friend named "Angel, " who lives in Philadelphia, but he did not know Angel's last name. (Id at 57-58, 98, 112, 115). Meran told Corporal Grenci that he borrowed the van in Philadelphia the prior day. (Ex. 3 at 3-4.) Corporal Grenci thought it was unusual that Meran was using a borrowed van so far away from home without knowing the owner's last name. (ECF No. 86 at 58.)

         26. Corporal Grenci asked Meran who the passenger was and he said his wife's uncle. (Id. at 58.) When Corporal Grenci asked for the passenger's name, Meran initially hesitated and then provided only the name "Wilquin." (Id. at 58-59, 112.)

         27. Corporal Grenci asked Meran about his travels, and Meran was unable to explain where he was coming from, but said he was going back to New Jersey. (Id. at 59; Ex. 3 at 5.) Overall, Corporal Grenci believed Meran was stalling and found his answers to be evasive, but conceded that Meran's hesitation partly could be attributed to his difficulty speaking English. (ECF No. 86 at 60, 110.)

         28. While Meran stood near the passenger side window of the patrol vehicle, Corporal Grenci checked Meran's driver's license. (Id. at 60-61.) Meran explained that even though he had a New York driver's license, he had been living in Jersey City, New Jersey, for a number of years. (Id. at 61.) Corporal Grenci determined that Meran's license was valid and that he had one theft-related offense. (Id.)

         29. Pursuant to Corporal Grenci's request for back-up assistance, Trooper Warman arrived at the scene, and Corporal Grenci asked him to verify the identification information for Hernandez. (Id at 63, 167, 168.)

         30. Trooper Warman approached the passenger side of the van and attempted to obtain Hernandez's identifying information, but was unsuccessful because Hernandez had a hard time understanding Trooper Warman. (Id. at 169, 198, 200.)

         31. Trooper Warman confirmed that when he arrived, Meran was standing next to Corporal Grenci's front side passenger window and he was not handcuffed. (Id. at 168.)

         32. Corporal Grenci next inquired whether Meran had anything illegal in the van such as drugs or guns, and Meran replied, "no, no." (Ex. 1 at 13:32-13:35; Ex. 3 at 5.)

         33. After that, Corporal Grenci asked Meran if he could search the van, to which Meran replied, "yeah, yeah, yeah, sure." (ECF No. 86 at 62; Ex. 1 at 13:36-13:37; Ex. 3 at 5.) To be certain, Corporal Grenci asked Meran a second time whether he could conduct a search, and Meran provided the same affirmative response. (ECF No. 86 at 62; Ex. 1 at 13:38-13:40; Ex. 3 at 5.) Corporal Grenci requested consent to search the van 12 minutes after he initiated the traffic stop. (ECF No. 86 at 162.)

         34. Corporal Grenci was convinced that Meran understood his questions and gave his voluntary consent to search the van. (Id. at 62-63, 122.) Overall, Trooper Grenci felt certain that Meran understood him because he immediately answered questions such as whether he had weapons and whether he agreed to be patted down. (Id. at 162.)

         35. Corporal Grenci did not advise Meran that he could refuse giving permission to search the van. (Id. at 120.)

         36. Corporal Grenci did not provide Meran with a consent to search form in English or Spanish, even though he had both forms in his vehicle. (Id. at 121-22.)

         37. When Corporal Grenci advised that he was going to search the van, Trooper Warman asked Hernandez to exit and then patted him down. (Id. at 64, 169.) Trooper Warman did not find any drugs, weapons or contraband. (Id. at 169.)

         38. During the search of the vehicle, Meran and Hernandez were not restrained and stood next to each other off the highway 10-15 yards in front of the van. (Id. at 64, 65, 169.)

         39. Corporal Grenci first opened the driver's door to locate the button to release the rear hatch. (Id. at 65.) He then went to the back of the van, looked underneath the bumper area of the vehicle and saw a square box that was painted black with a little rust on it where the bumper should be located. (Id at 66, 67, 170.) Based on his training and experience, Corporal Grenci knew that the box was an aftermarket compartment, which is used to hide criminal contraband. (Id. at 67.)

         40. To confirm the box was a trap, Corporal Grenci peeled back the plastic piece that sits on top of the bumper, through which he could see a metal box. (Id. at 67-68.) Corporal Grenci believed the trap was the same as the traps that his fellow troopers had found on other Honda Odyssey minivans. (Id. at 68.)

         41. Corporal Grenci explained that it can be very difficult to open traps because they usually are wired and require a special sequence of events to unlock them. (Id. at 69.) Therefore, he decided to have the van towed to the barracks so that he could determine how to open the trap. (Id.)

         42. When Corporal Grenci discovered the trap, he decided to detain Meran and Hernandez. (Id. at 69, 125.) Corporal Grenci advised them that they were not under arrest, but they were being detained until the troopers could determine how to open the trap and see if anything was inside. (Id. at 75.) Meran and Hernandez were handcuffed and placed in Trooper Warman's patrol vehicle to be transported to the PSP barracks at Mercer. (Id. at 70, 125, 170, 175-76.)

         43. After Meran was handcuffed but before he was placed in Trooper Warman's vehicle, Trooper Warman told Meran that he was not free to go. (Id. at 176; Ex. 4 at 3.) Trooper Warman then recited the Miranda warnings to Meran in English. (ECF No. 86 at 178; Ex. 2 at 10:50-11:12; Ex. 4 at 3.) As shown on the recording of the traffic stop, this occurred on the side of the highway as traffic passed by, which created a significant amount of background noise. (Ex. 2 at 10:50.) Trooper Warman recited the Miranda warnings very quickly, listing them one after the other without pausing at any point to confirm or verify that Meran understood his Miranda rights or agreed to waive them. (Id. at 10:50-11:12; Ex. 4 at 3.)

         44. Although a Miranda rights form is available in Spanish, Trooper Warman did not have one with him. (ECF No. 86 at 123-24, 178.)

         45. Trooper Warman did not read or recite Hernandez his Miranda rights at any time. (Id. at 202, 203.)

         46. After reciting the Miranda warnings to Meran, Trooper Warman immediately began asking Meran questions. (Id. at 181; Ex. 2 at 11:14; Ex. 4 at 3). At no time did Meran state that he understood his rights and agreed to waive them.

         47. Trooper Warman conceded that he did not know whether Meran understood his rights when he administered the Miranda warnings, but he believed that Meran could understand English as their conversation progressed. (ECF No. 86 at 205.)

         48. Trooper Warman agreed that the waiver of Miranda rights is an important fact, but conceded that his report of the incident does not indicate that Meran waived his Miranda rights and agreed to speak with him. (Id. at 185.)

         49. Trooper Warman continued to ask Meran questions from the time he was placed in the trooper's vehicle until they arrived at the barracks. (Id. at 186; Ex. 4 at 3-13.) The conversation was recorded on Trooper Warman's MVR. (See generally Ex. 2.)

         50. While in Trooper Warman's vehicle, Meran and Hernandez conversed in Spanish, which also was recorded on Trooper Warman's MVR. (ECF No. 86 at 188; Ex. 4 at 7, 8, 9, 13.)

         51. The conversation between Meran and Hernandez was translated from Spanish to English and indicates that Meran was able to answer Hernandez's questions concerning what was happening. (See generally. Ex. 5.) For example, Meran explained to Hernandez that the troopers were investigating, they found a trap, one of the troopers asked to check Meran's phone, but he did not want the trooper to look at it, and Meran hoped there was nothing in the van. (Ex. 4 at 7, 13; Ex. 5.)

         52. In response to the tow truck dispatcher's question whether the van had front wheel or rear wheel drive, Corporal Grenci commented that he could not get that information because Meran and Hernandez do not speak English. (ECF No. 86 at 158-59, 163; Ex. 3 at 7.) Corporal Grenci could not recall what his thought was in making that comment. (ECF No. 86 at 163.)

         53. Corporal Grenci remained with the van until the tow truck arrived and then followed it along with Trooper Warman's vehicle back to the PSP Mercer barracks. (Id. at 71.) After arriving at the barracks, Trooper Warman took Meran and Hernandez inside to the control room, where he ...

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