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United States v. Mariscal

United States District Court, E.D. Tennessee, Greeneville Division

June 21, 2019


          CORKER JUDGE.



         Defendant, 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.


         Ms. 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].

         Judge 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).


         Ms. 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.

         Once 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 the car.

         Trooper 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.

         Trooper 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].

         The two 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.

         Trooper 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.”

         Trooper Honesto asked the young man about what he did back in California. Hesitating, the young man said his work was “like'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.

         Trooper 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], ”[3] and it was only his first time visiting [Id., 11:2');">25].

         Trooper 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.

         Ms. Mariscal returned to the car.[4] 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.

         After a 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].

         Trooper 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 right?
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 the top?
Mariscal: You can. But what I'm saying is am I being pulled over for a [unintelligible]? But ...

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