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UNITED STATES v. MARTEL

June 12, 1997

UNITED STATES OF AMERICA
v.
JUAN GARCIA MARTEL and JOSE LUIS SOLIS



The opinion of the court was delivered by: ORLOFSKY

 ORLOFSKY, District Judge:

 On November 7, 1996, defendants, Juan Garcia Martel ("Garcia") and Jose Luis Solis ("Solis"), along with nine other individuals, were arrested at a gas station in Jersey City, New Jersey. Agents of the Immigration and Naturalization Service ("INS") determined that Garcia, and the nine passengers in the van Garcia and Solis had driven to New Jersey from Houston, Texas, were undocumented aliens.

 On November 14, 1996, Solis and Garcia were each indicted on one count of conspiracy to transport illegal aliens within the United States in violation of 18 U.S.C. § 371, and one count of transporting illegal aliens within the United States in violation of 8 U.S.C. § 1324(a)(1)(A)(ii).

 Defendants have filed motions seeking to suppress the evidence of the presence of illegal aliens in the van, and to suppress statements given to INS agents on the date of their arrest, all of which they contend are the "fruit" of an illegal seizure of their persons in violation of the Fourth Amendment. Alternatively, defendants move to suppress the statements given to the INS agents as coerced in violation of their rights under the Fifth Amendment.

 Defendants' motion to suppress requires this court to undertake an analysis of the Supreme Court's burgeoning Fourth Amendment jurisprudence in the unique factual context of this case. For the reasons set forth below, I conclude that the evidence obtained by the New Jersey State Police and the INS were the "Fruits" of an illegal seizure in violation of the Fourth Amendment and must be suppressed.

 I. Facts1

 On the morning of November 7, 1996, New Jersey State Police Detective James Price and his partner, Detective Michael Fallon, who were assigned to the Narcotics Trafficking Unit of the Narcotics and Organized Crime Bureau, were conducting a mobile surveillance operation from an unmarked automobile in Jersey City, New Jersey. Transcript of April 18, 1997 hearing (hereinafter "Tr.") at 10-12. The target of this surveillance was a vehicle known to have been involved in alleged drug trafficking. The detectives suspected that the vehicle and its driver might be at a motel adjacent to the New Jersey entrance to the Holland Tunnel. Tr. at 11.

 At approximately 10:40 in the morning, while detectives Price and Fallon drove around the area near the entrance to the Holland Tunnel in search of the target vehicle, Price observed a van with tinted windows, parked near two public telephones in the parking lot of a Texaco gas station on the main access road to the Holland Tunnel. Tr. at 12-13. The detectives pulled their car into a parking lot adjacent to the Texaco station from which they could observe the van and its occupants. Tr. at 13-14. From this position, Detectives Price and Fallon recorded the van's license plate number and radioed it to police headquarters. Tr. at 14. A vehicle registration check revealed that the van, a 1996 Ford Club Wagon, was registered to Anna and Adrian Garcia of Pasadena, Texas. Id. An NCIC check uncovered no information implicating the van in any illegal activity. Tr. at 36. As Detectives Price and Fallon observed the scene from behind a fence in the adjacent parking lot, they noticed heavy "foot activity between the van and the phones and people going into the snack shop there at the Texaco station, getting sodas or whatever they were, condiments, whatever . . . ." Tr. at 32. The detectives also observed that the van's occupants were largely, or exclusively, Hispanic males. Tr. at 33.

 Detective Price testified that, at the point that he and Detective Fallon decided to approach the defendants, the detectives "had no evidence of any type of criminal activity," rather, the approach was purely "an investigative approach just to find out, see what was going on. . . the nature of the business." Tr. at 44. Detective Price also testified that, more than the fact that the van was from Texas, a "source state" for illegal drugs, he was "intrigued . . . even more" by the fact that certain individuals from the van were standing by the pay telephones apparently awaiting incoming calls. Tr. at 52. Detective Price described a "very common element that we see during the course of some of these narcotics investigations," which he termed "pager phone activity," in which a drug trafficker uses a pay telephone to contact another pager and awaits a return telephone call. Id. Detective Price admitted that he did not see any of the individuals involved wearing or using a pager. Id.

 Upon entering the parking lot of the Texaco station, Detective Price first approached Solis, because, judging from his "observations from the other side of the fence [Solis] looked as though, (a) he was the driver, (b) he looked like he was choreographing what was going on here. He appeared to be the authority figure, so to speak." Tr. at 40. Detectives Price and Fallon, who wore plain clothes and carried their weapons concealed in a "fanny pack," identified themselves as New Jersey State Police officers and asked Solis for identification. Tr. at 17. Solis complied, handing Price his valid Texas operator's license. Tr. at 18. Either Detective Price or Detective Fallon held onto the license. Tr. at 77. Detective Price also testified that he "may have pat searched Mr. Solis and maybe Mr. [Garcia], I don't recall. I usually do as a practice." Tr. at 25. In any event, the pat searches revealed nothing incriminating. Id.

 Shortly after Solis produced his operator's license, Price observed two individuals walking toward a parked Volkswagen, and gestured with his hand for them to stop, which they did. Tr. at 43, 48. The driver of the Volkswagen, Alphonso Quito, told Detective Price that he had agreed to drive the other individual to Lodi, New Jersey. Tr. at 50. Mr. Quito's would-be passenger spoke no English. Tr. at 49. Detectives Price and Fallon called for a Spanish-speaking officer, and in response to that request New Jersey State Police Detective Carlos Tapia soon arrived at the scene and began interviewing the occupants of the Volkswagen and the van in Spanish. Tr. at 20, 50. After interviewing the van occupants, Detective Tapia advised Solis of his Miranda rights. Tr. at 20. Subsequently, Detective Price prepared a New Jersey State Police "consent to search" form, which he explained to Solis, and which Solis signed. Tr. at 22. The search of the van conducted pursuant to the signed consent revealed "nothing of evidential nature," according to Detective Price. Tr. at 23.

 The State Police detectives subsequently contacted the Immigration and Naturalization Service ("INS") to ask them to evaluate the situation, if they considered it was "worthy to respond to the location." Tr. at 23. INS agents responded to the scene within a few minutes and detained Solis and his co-defendant, Garcia, along ...


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