United States District Court, E.D. Tennessee, Greeneville Division
MEMORANDUM AND ORDER
CHIEF UNITED STATES DISTRICT JUDGE.
Maria Mariscal, objects to Magistrate Judge Corker's
Report and Recommendation [D. 41], which recommends that Ms.
Mariscal's motions to suppress [D. 30, 36] be denied. For
the following reasons, Ms. Mariscal's objection [D. 48]
is overruled, the Report and Recommendation is accepted in
whole, and the motions to suppress are denied.
Mariscal was indicted on August 15, 2');">2018, for one count of
conspiring to distribute, and possess with the intent to
distribute, 50 grams or more of methamphetamine, its salts,
isomers, and salts of its isomers, in violation of 2');">21 U.S.C.
§ 846, 841(a)(1), and 841(b)(1)(A) [D. 2');">20]. She has
filed two motions to suppress evidence recovered in one
traffic stop. The initial motion to suppress was filed on
November 2');">21, 2');">2018, arguing the traffic stop was prolonged
beyond the amount of time reasonably required to complete the
stop's mission [D. 30]. Later, Ms. Mariscal filed a
supplement, arguing the officer also searched her vehicle
without her consent [D. 36].
Corker held a hearing regarding the motion and supplement on
March 1, 2');">2019 [D. 39], and promptly filed the Report and
Recommendation [D. 41]. Ms. Mariscal has objected, and the
Government has responded [D. 48, 49], so the issue is now
ripe for decision. The standard of review is de novo. 2');">28
U.S.C. § 636(b)(1)(B); Fed. R. Crim. P. 59(b)(2');">2).
Mariscal seeks to suppress evidence of twenty-two vacuum
sealed bags, containing an approximate total of twenty-seven
pounds of methamphetamine, recovered by Texas State Trooper
Max Honesto from her car on April 4, 2');">2018 [D. 37-3]. On that
day, Trooper Honesto was patrolling Interstate 40 in the
Texas panhandle, a stretch of highway known for drug
trafficking. He saw an eastbound vehicle move from the right
to the left lane without using a signal, in violation of Tex.
Transp. Code § 545.106. He initiated a check on the
license plate, and pulled the car over.
they were on the side of the road, Trooper Honesto noticed
the car had a non-functioning brake light. He also noticed
that both the driver and passenger side window were open,
which struck him as “kind of odd”[2');">2" name="FN2');">2" id="FN2');">2">2');">2] [D. 2');">2');">42');">2');">2');">2');">42');">2');">2');">2');">42');">2');">2');">2');">42');">2, p. 9]. He
had learned from past experience that motorists trafficking
drugs would often open both windows in an attempt to air out
Honesto approached the vehicle from the passenger side,
identified himself, asked for license and registration, and
explained the reason for the stop. Ms. Mariscal was in the
passenger seat, but said she owned the car, which a young man
was driving. Trooper Honesto asked the young man to step out
of the car and wait by the patrol car (“common
practice” in traffic stops [Id., p. 10]),
while he spoke with Ms. Mariscal.
Honesto wanted to talk with her because-despite her claim
that she owned the car-Ms. Mariscal was not listed on the
insurance paperwork, either as the main insured or as a
driver. She explained this discrepancy by telling Trooper
Honesto that the main insured was her boyfriend, who had just
sold the car to her, and that the young man driving the car
was her son. When Trooper Honesto checked the date of
registration, he noticed that it had only recently been
registered-in his experience, it is “common
practice” for drug traffickers to register a vehicle
immediately prior to making a drug run [D. 2');">2');">42');">2');">2');">2');">42');">2');">2');">2');">42');">2');">2');">2');">42');">2, p. 13].
discussed Ms. Mariscal's travel plans: She was headed
from California to Tennessee for the first time to visit her
aunt Yolanda (related through her dad's side), who had
cancer. She and her son only planned to stay with
Yolanda's family for two days.
Honesto then asked the young man to sit in his patrol car
while he wrote out the ticket. While this was happening,
Trooper Honesto asked the young man some of the same
questions he'd asked Ms. Mariscal. The young man
confirmed they were traveling to visit Ms. Maris-cal's
aunt, who was “super sick.” But other details did
not match Ms. Mariscal's story. For example, the young
man said they planned to stay in a hotel, not with the
family, and was under the impression they were staying in
Tennessee for more than two days. The young man also thought
the aunt's name was “Maria.”
Honesto asked the young man about what he did back in
California. Hesitating, the young man said his work was
“like landscaping...like drywall...it's like
different things” [D. 37-1, at 07:00]. The details of
the young man's occupation became less clear as Trooper
Honesto asked more questions. At first, he said he worked for
his uncle, then said he'd quit within the past two weeks.
He attempted to clarify this discrepancy by saying his uncle
still let him work from time to time, and that he had to be
back to work on “maybe” Monday.
Honesto next asked about the family. The young man said Ms.
Mariscal was his Mom, that she was not working at the moment,
and that she was separated from his father, who was a
painter. When asked about the name on the vehicle
registration, the young man said it was Ms. Mariscal's
boyfriend. When asked why the boyfriend did not come on the
trip, he said that he wasn't sure, but maybe that the two
were “having problems.” (The young man said he
lived with his father.) As far as the aunt they were going to
see, the young man said he was pretty sure she was at a
hospital, but was not sure whether the aunt was related to
Ms. Mariscal through her mom or dad's side. Trooper
Honesto then asked the young man if he knew a “lady
named Yolanda.” The young man paused and audibly
hesitated. He suggested it was maybe one of Ms.
Mariscal's sisters. But he wasn't sure, because
“all the family's over there [in Tennessee],
” and it was only his first time visiting
Honesto printed out the traffic warning and handed the young
man his ID card, as well as Ms. Mariscal's. Before the
conversation ended, Trooper Honesto saw Ms. Mariscal open the
passenger door and look back. She appeared to be “in
suspense” and “anxious” about what was
going on in the patrol car [D. 2');">2');">42');">2');">2');">2');">42');">2');">2');">2');">42');">2');">2');">2');">42');">2, p. 19]. By this point,
Trooper Honesto believed there was “more than just a
traffic violation” [D. 2');">2');">42');">2');">2');">2');">42');">2');">2');">2');">42');">2');">2');">2');">42');">2, pp. 17-18]. He finished by
asking the young man when he'd last seen the aunt and how
they were related. The young man was not sure, but that it
was a long time ago. Trooper Honesto said, “so,
it's your mom's sister, then?” The young man
quickly said, “No, no...she doesn't have a sister.
She has two brothers.” [D. 37-1, at 12');">2:55]. (Yet only
ninety seconds prior, the young man said his Mom had
“sisters” in Tennessee.) Trooper Honesto wrote
out the ticket, excused the young man, and asked Ms. Mariscal
to come back to the patrol car.
Mariscal returned to the car. Trooper Honesto began by saying
he just wanted to “clarify” the details of the
trip-in her response, Ms. Mariscal spoke at length about the
family they were visiting and said, unprompted, that she was
an only child [Id., 14:05]. She also contradicted
the young man in other ways. For instance, the young man said
the aunt was at a hospital; Ms. Mariscal said the aunt was
staying at her house. The young man said he had just quit his
job with his uncle; Ms. Mariscal said he was going to start a
new job, working for her friend.
back and forth about where Ms. Mariscal and the young man
would be staying, both on the road and when they arrived in
Tennessee, Trooper Honesto told Ms. Mariscal that her story
sounded “strange” and “out of the
ordinary” [Id., 2');">20:00]. He explained,
“the reason I'm asking the questions is because his
story and your story aren't the same” [D. 37-2');">2].
Honesto then asked Ms. Mariscal, “you don't have
anything illegal inside this car, do you?” To which she
replied: “No, señor, puede checarlo.” (No,
sir, you can check it.) [D. 37-2');">2, p. 2');">20]. Shortly after this,
he asked Ms. Mariscal where she got the car. She replied:
“I can open it, if you want to check it out”
[Id., p. 2');">22');">2]. Trooper Honesto followed up:
Honesto: So..., so, this is...this is my question to you, all
Mariscal: Go ahead.
Honesto: Since you're the owner of the car, you know what
I mean? I could've asked him, but I'm asking you
since you're the owner of the car, can I search your car,
everything, from the front to the back, from the bottom to
Mariscal: You can. But what I'm saying
is am I being pulled over for a [unintelligible]? But