Commonwealth v. Carmenates

2021 PA Super 244

COMMONWEALTH OF PENNSYLVANIA Appellant v. VISMANI CANALES CARMENATES

No. 1045 MDA 2019

No. J-E02004-21

Superior Court of Pennsylvania

December 14, 2021

Appeal from the Suppression Order Entered June 25, 2019 In the Court of Common Pleas of Clinton County Criminal Division at No(s) CP-18-CR-0000623-2018

BEFORE: PANELLA, P.J., BENDER, P.J.E., BOWES, J., LAZARUS J., OLSON, J., DUBOW, J., KUNSELMAN, J., MURRAY, J., and McCAFFERY, J.

OPINION

DUBOW J.

The Commonwealth of Pennsylvania appeals from the June 25, 2019 Order granting the Motion to Suppress filed by Vismani Canales Carmenates ("Carmenates"). The Commonwealth argues that the suppression court erred in relying on waived arguments, making factual findings that contradicted the testimony, and granting Carmenates' Motion to Suppress. After careful review, we conclude that Carmenates did not knowingly, intelligently, or voluntarily consent to the search of his vehicle. Thus, we affirm the Order granting Carmenates' Motion to Suppress.

Following a traffic stop, the Commonwealth charged Carmenates with Possession With Intent to Deliver a Controlled Substance and Possession of Drug Paraphernalia.^[1] Carmenates filed an Omnibus Pre-Trial Motion, including a Motion to Suppress, contending that the traffic stop was illegal and his consent to search the vehicle was not knowing, intelligent, or voluntary and/or was invalid because it was the product of an unconstitutional detention.

The suppression court held a hearing on the Motion to Suppress, at which Pennsylvania State Trooper Jeremy Hoy and Carmenates testified.^[2] The court also viewed and admitted into evidence the DVD recording of Trooper Hoy's and Carmenates' interaction produced by the mobile video recording ("MVR") unit on Trooper Hoy's patrol vehicle, and a photograph of items hanging from the rearview mirror of Carmenates' vehicle. From the evidence submitted, the suppression court found the following facts.

On December 12, 2018, Trooper Hoy was working in the Bureau of Criminal Investigation, Drug Law Enforcement, Central SHIELD Unit.^[3] He was on stationary patrol near the Lamar exit of Interstate 80 when he observed Carmenates' vehicle following a tractor-trailer at what Trooper Hoy considered an unsafe distance and at a speed slower than the flow of traffic.

Trooper Hoy pulled over Carmenates' car using lights and a siren. Trooper Hoy exited his patrol vehicle. As he approached the passenger side window of Carmenates' vehicle^[4] he noticed in the back of the vehicle several large duffel bags and a suitcase, covered by a tan sheet and a large stuffed toy bear. He also observed numerous fast food and snack items, a fast food drink and water in the cup holders, two air freshener spray bottles, and "religious paraphernalia" hanging from his rearview mirror. Trooper Hoy testified that these items could be indicators of criminality.^[5] Trooper Hoy did not smell any odor of marijuana or observe any drugs or drug paraphernalia, cash, weapons, or contraband of any type, nor did he observe Carmenates attempt to conceal anything or make any furtive movements.

When Trooper Hoy attempted to speak with Carmenates, Carmenates immediately indicated that he spoke only Spanish. Trooper Hoy does not speak Spanish, but told Carmenates that they "could make it work."^[6] To "make it work," Trooper Hoy employed the Google Translate application ("Google Translate") on his cell phone to translate his statements from English to Spanish and Carmenates' statements from Spanish to English.^[7] Trooper Hoy indicated that he did not have any problems understanding the responses he received from Carmenates from the Google Translate application and that Carmenates never told Trooper Hoy that he did not understand a question Trooper Hoy asked him through Google Translate. Trooper Hoy conceded, however, that Google Translate is "not 100 percent accurate at times."^[8]

Carmenates provided Trooper Hoy with Carmenates' drivers' license, insurance card, and registration card. Trooper Hoy requested that Carmenates exit the vehicle. Carmenates complied and Trooper Hoy searched him for weapons.^[9] Trooper Hoy instructed Carmenates to stand outside the patrol vehicle's front passenger window in the cold while Trooper Hoy conducted a criminal history check inside his heated patrol vehicle using the vehicle's computer.^[10] Trooper Hoy explained that he remained in his warm patrol vehicle because he needed to use his computer to verify Carmenates' identity, it was cold out, and it was easier for Trooper Hoy to hear the Google Translate translations inside the vehicle.

Trooper Hoy stated that he intended to issue a warning to Carmenates- but before doing so, and before returning Carmenates' documents to him and ending the traffic stop, Trooper Hoy asked him about his travel plans. During this portion of the MVR recording, Carmenates is heard giving lengthy responses in Spanish to Trooper Hoy's questions. However, many of Carmenates' responses were not translated by Google Translate at all and Google Translate translated some lengthy responses as short, nonsensical English statements, including the statement "you already see the see a bear for the girl the suitcase with the coat over coat." MVR Recording, 12/12/18, at 7:39-8:19.

Trooper Hoy had copies of a written "consent to search" form already translated into Spanish in his vehicle. Nevertheless, approximately 12 minutes into the traffic stop, Trooper Hoy chose to use Google Translate to obtain Carmenates' consent to "see" his luggage.^[11] Trooper Hoy never offered Carmenates the opportunity to review the Spanish-language consent form. While still standing jacketless outside the police vehicle in the cold, Carmenates replied "si" to the question of whether Trooper Hoy could "see" Carmenates' luggage. Carmenates then proceeded to walk towards his vehicle.

Trooper Hoy then exited his vehicle and followed Carmenates to Carmenates' vehicle. Carmenates opened the rear door of his vehicle and retrieved a suitcase. Trooper Hoy, however, using gestures rather than words, directed Carmenates to a black duffel bag located under the tan bed sheet and large stuffed toy bear. Carmenates retrieved the black duffel bag and complied with Trooper Hoy's non-verbal direction to open it.^[12] The black duffel bag contained a large amount of marijuana packaged and vacuum sealed in plastic bags. Trooper Hoy then handcuffed Carmenates and searched the remaining duffel bags. In the bags, Trooper Hoy discovered approximately 39 pounds of marijuana.

The testimony and MVR recording indicated that Trooper Hoy never informed Carmenates that Carmenates was free to leave or to refuse consent to search his vehicle or personal effects or of his Miranda^[13] rights. In addition, Trooper Hoy still had possession of Carmenates' license, registration, and proof of insurance at the time Trooper Hoy requested to see Carmenates' luggage, including the black duffel bag.

Carmenates testified through a translator at the suppression hearing. He stated that he spoke just a few words of English. N.T. at 97. He also testified that he understood Trooper Hoy's request to see Carmenates' luggage as meaning that Trooper Hoy simply wanted to "see" it. Id. Carmenates also testified that Trooper Hoy pointed at the bags because Trooper Hoy "did not have a translator there." Id. at 97-98. He further testified that if Trooper Hoy pointed, Carmenates "would follow his orders" because he "didn't think that [he] had the option to say no, so I just followed what he told me to do." Id. at 98. Importantly, Carmenates testified that Trooper Hoy "wasn't talking to me and he didn't use" Google Translate; rather, he "kept pointing[.]" Id. at 99.

Following the hearing and after considering the parties' briefs, the suppression court granted Carmenates' Motion to Suppress, concluding that the Commonwealth had failed to establish that Carmenates voluntarily, knowingly, and intelligently consented to the search of his vehicle and luggage, finding, inter alia, that "a substantial language barrier existed between [Carmenates] and Trooper Hoy and [Carmenates] did not fully comprehend Trooper Hoy's request and/or statements." Opinion at 8, 15.

The Commonwealth timely appealed, and, on September 1, 2020, this Court published an Opinion reversing the suppression court's Order granting Carmenates' Motion to Suppress, finding that Carmenates knowingly, intelligently, and voluntarily consented to Trooper Hoy's request to search. See Commonwealth v. Carmenates, No 1045 MDA 2019 (Pa. Super. filed Sept. 1, 2020). Carmenates subsequently filed an Application for Reargument En Banc. On November 9, 2020, we issued a per curiam Order granting reargument and withdrawing the panel's September 1, 2020 decision. Pursuant to this Order, the Commonwealth filed a substituted Brief, raising the following six issues:

1. Whether the suppression court committed an error of law/abuse of discretion in determining that [Carmenates'] consent to search his vehicle and its contents was not voluntary?

2. Whether the suppression court committed an error of law/abuse of discretion in concluding that [Carmenates] was the subject of an unconstitutional detention?

3. Whether the suppression court committed an error or law/abuse of discretion in failing to find that [Carmenates] waived various issues by failing to present them in his Omnibus Pretrial Motion?

4. Whether the suppression court committed an error of law/abuse of discretion in making factual findings outside the record of the suppression hearing?

5. Whether the suppression court committed an error of law/abuse of discretion in making factual findings contrary to the uncontroverted testimony of the

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