State of Maine v. Rosario

STATE OF MAINE UNIFIED CRIMINAL COURT
LOCATION: HOULTON
AROOSTOOK, ss DOCKET NO. CR .. 19-30895

STATE OF MAINE )
)
)
)
vs. ) ORDER ON MOTION
) TO SUPPRESS
)
)
PEDRO ROSARIO, )
Defendant )

By an indictment dated March 12, 2020, the Defendant, Pedro Rosario (hereafter

"Rosario") is charged with Aggravated Trnfficking in Scheduled Drugs, Class A (17-A M.R.S.A.

§! !05-A(l)(M)). Before the court is the Rosario's Motion to Suppress, filed October 30, 2020.

Hearing on the motion was held January 11, 2021. At hearing testimony was received from

MDEA Agents William Campbell, Forrest Dudley and John Gaddis, and Maine State Police

Officers Hunter Cotton and Chad Fuller. Also admitted into evidence were the following exhibits

(Ex._):

Ex. I- recording of interview of Rosario (first 8");

Ex. 2- signed Miranda warning;

Ex. 3-transcript of recording of interview of Rosario, with Spanish to English translation•;

Ex. 5- email from T-Mobile with GPS data at 11:26 am PST;

, The patties stipulate that the translation of Spanish to English, done by Darlene Metcalf­
Bergeron, is done accurately and by someone duly qualified to conclucl such translation.

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Ex. 6- email from T-Mobile with GPS data at 11 :32 am PST;

Ex. 7- email from T-Mobile with GPS data at 11:33 am, 11;35 am, 11:37 am, 11:42 am,

11 :47 am, 11 :52, and 11 :57 am, PST ;

Ex. 9- video recording of felony traffic stop (first 6"): and

Ex, 10- photograph.

Rosario contends that on December 18, 2019 the vehicle he was a passenger in was

illegally stopped without articulable suspicion, that he was illegally arrested without probable

cause, and that he was illegally interrogated. The State contends that at the time the vehicle

Rosario was occupying was stopped, following which Rosario was immediately placed under

arrest, probable cmrne existed that Rosario pa1ticipated in a criminal conspiracy pursuant to 17­

A, M.R.S.A. §151.

Findings of Fact.

In September, 2019, a confidential informant (hereafter "CI") that had been working with

MDEA told Agent Campbell that Arhenny Messan, who the CI had served time with in prison,

had contacted the Cl inquiring if he wanted to conduct some drug deals. The CI was someone

Agent Campbell had worked with previoulsy and found reliable, so he instructed the CI to reach

back to Messon. The CI and Messan had multiple phone calls, all recorded by MDEA, in which

sales and prices of Cocaine and Metharnpthetarnine were discussed. During a phone call on

September 11, 2019, Messon told the CI his brother would be contacting him to further discuss.

Messon did not tell the Cl his brother's name, but did provide him the phone number his brother

would be using.

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A few minutes later the Cl received a phone call from the number he had been provided

from a man who identified himself as Messon's brother. The Cl and Mcsson's brother discussed

making a drug transaction. At the end of the conversation, Messon 's brother identified himself as
0
Pete1·,',

Over the next several weeks the CI and "Peter" had additional phone calls discussing a

sale of Cocaine and Methampthetamine. All of the calls were monitored and recorded by Agent

Campbell. During this time, Agent Campbell did some background investigation of Messan, and

learned he had a brother named Pedro Rosario who lived in Rhode Island. Campbell then did

some background investigation of Pedro Rosario. Agent Campbell developed a "hunch" that

Pedro Rosario was "Peter". Now having biographical data on Rosario, Agent Gaddis, who was

on loan from Homeland Security, obtained a mug shot of Rosario and provided it to Campbell

for use in the investigation'.

In early December, 2019, the CI and "Peter" agreed to meet in New Hampshire to

conduct a sale for 4 oz. of Metamphetamine. This transaction was canceled, but the CI and

"Peter" continued having phone calls and agreed to meet in Presque Isle for a sale of 4 oz. of

Metharnphetamine for $9,000. Agent Campbell instructed the CI to move the location to

Houlton, but this transaction was cancelled because "Peter" could not find a driver. A few days

later "Peter" called the CI a11d told him he had found a driver, and they agreed on a meeting date

of December 18, 2019 in Houlton. "Peter" also asked the CI how long it would lake him to " ..get

, During the hearing, the defense objected to the introduction of the photograph asserting the
State had not complied with a discovery request to produce all records. The photograph was
produced in the discovery. The court's understanding is Agent Gaddis telephoned a dispatcher at
Homeland Security requesting a copy of any photographs of Rosario. On this record the court
does not find that the State failed to produce any records related to the photograph and the
objection is overruled.

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rid of a whole one?" The CI asked "Peter" what he meant, and "Peter" responded 32 oz., which

was understood to be Metharnphetaminc. The gist of the plan was "Peter" would sell the CI 32

oz. of Mcthamphetarninc, with $10,000 to be paid at the time of the exchange on December 18,

2019 and the balance paid when the drugs were sold. The meeting place in Houlton was to be

near the Houlton Big Stop.

On December 17, 2019 Agent Campbell applied for and obtained a search warrant for

GPS tracking data of the cell phone number "Peter" had been using to communicate with the Cl.

Agent Dudley had been assigned the role of receiving the GPS location data being sent from T­

Mobile and monitoring the location of the phone "Peter" was purportedly using. Location data

was initially received every 15 minutes, but shorter intervals were requested as they got closer to

the destination time. At each time interval, T-Mobile issued an email with the latitude/longitude

data for the location of the phone, unless the phone was disabled, off, or there was no cell phone

reception to record a location, in which event the email from T-Mobile contained the message

"Absent Subsriber" (See Ex. 5, 6 and 7). The location data was accuaratc lo within 25 meters.

On the morning of December 18, 2019 a pre-operation meeting was attended by the

MDEA agents and MSP officers involved in the investigation. At the meeting the anticipated

transaction with "Peter" was reviewed, details of the investigation to date were shared, roles

were assigned, and a photograph of their suspect, Rosario, was circulated. Agent Gaddis and

Trooper Cotton, whose roles will be discussed more, infra, were shown the photograph of

Rosario.

At approximately 9 am on December 18, 2019, "Peter" contacted the CI and told him he

was on his way north and was in a gray Toyota. Agent Campbell assumed the Toyota was a

sedan, and suspected it had out of state plates, pesumably Rhode Island. Agent Campbell

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anticipated "Peter" would an-ive in Houlton at approximately 2 pm. Over the next few hours,

Agent Dudley intermittently received emails with location data of the phone, showing the phone

traveling north on 1--95, which he relayed to the other agents and officers. An email received by

Agent Dudley at 1:47 pm indicated the phone was in Houlton near the meeting location.

(Stipulation by parties). But then "Peter" called the CJ and told him he saw a white vehicle at a

nearby gas station which he thought was a police vehicle, and was calling off the transaction.

After that the location data emails being received by Agent Dudley showed the phone traveling

south on 1-95. At that development Agent Dudley instructed T ..Mobile to shorten the time

intervals between email notifications. Agent Dudley monitored the location data over the next 30

minutes as the phone traveled south on 1-95, and relayed this information to the officers on ttie

road.

Al that time, MSP Officers Fuller and Cotton were both in position on 1-95. Trooper

Cotton had parked on the 1-95 cross-over at mile 272, watching south bound traffic for out-of

state vehicles. Sergeant Fuller was assigned to conduct a traffic stop on I-95 of the vehicle in

which the phone was located. At 2:26 pm Agent Dudley received, and forwarded to the other

officers, location data which showed the phone's location being near the island Falls I-95 exit,

near mile 276. (See Ex. 5). Sergeant Fuller recognized the location to be just south of his position

on the highway, so he accelerated to catch the vehicle he suspected contained the phone. Within

moments he caught up to an SUV style KIA, with Massachussettq plates, with another vehicle

just ahead of the KIA. When he caught up to the KIA he initiated a felony stop. Sergeant Fuller

based his felony stop of the KIA due to it being located where the GPS location data indicated

the phone was located, and the KIA having out-of-state plates, consistent with their knowledge

5
that the suspect was traveling to Houlton from Rhode Island. Fuller did not make any

observations about the occupants of the KIA before initiating the stop.

Meanwhile, Trooper Colton who was at the mile 272 cross-over saw two southbound

vehicles approach and go past him. Those vehicles were immediately followed by Sergeant

Fuller's vehicle. At the pre-operation meeting, Trooper Cotton had been shown a photograph of

Rosario. At the hearing Trooper Cotton testified he saw two dark complexioned occupants in the

SUV that had Massachussetts plates. Trooper Cotton got on the highway and proceeded south

behind Sergeant Fuller to assist in the stop. In the video of the stop, Trooper Cotton is heard

telling the other officers via his radio " ..602 is behind the car ... .I ID'd the two occupants in

it.it's a Dodge Avenger I think, gray .." (See Ex. 9). Neither Sergeant Fuller nor Trooper Cotton

observed the subject SUV speeding or make any other moving violations which would

independently warrant a stop. Per Trooper Cotton, the stop was initiated at 2:32 pm. The volume

of traffic on 1-95 at the time and location of the stop was very light. (Sec Ex. 9).

Upon Sergeant Fuller activating his blue lights to initiate the felony stop of the KIA, the

KTA pulled over and stopped in the breakdown lane. The vehicle immediately ahead of the KIA

continued south on 1-95.(See Ex. 9). Sergeant Puller yelled intructions to the operator of the KIA

to exit the vehicle. The operator complied, and the operator was immediately placed in

handcuffs. Instructions were then yelled to the passenger in the KIA to exit the vehicle. The

passenger door was opened, but the passenger appeared confused and began speaking in Spanish.

(See again Ex. 9). By then, Agent Gaddis, who had been riding with Trooper Record and spoke

Spanish, arrived on scene. Speaking in Spanish,Agent Gaddis ordered the passenger to exit the

vehicle. The passenger complied, and he also was immediately placed in handcuffs. Agent

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Gaddis recogni7.ed the passenger as Pedro Rosario, the suspect they had been shown a

photograph of earlier that day at the pre-operation meeting,

The State concedess that the driver of the KIA and Rosario were under aiTrest at the

moment they were placed in handcuffs, After the two men were handcuffed and under arrest, the

vehicle was sniffed by the trained canine handled by Trooper Record and no evidence

contributing to probahle cause was detected. (Oral stipulation entered by the parties). The parties

also agree no contraband was seized pursuant to a search of the KIA. The record on this motion

is silent as to whether phones of any kind were found in the vehicle,

After clearing the scene where the KIA was stopped, Rosario was taken to MDEA

headquarters in Houlton to be questioned. The interrogation was done by Agent Campbell, who

was in plain clothes. Agent McDonough, who was in a Border Patrol Uniform, was also present.

McDonough was carrying his service issued firearm. The interrogation was held in an MDEA

conference room, with the door shut. Rosario arrived still in handcuffs. The interview began at

3:38 pm, just over an hour after Rosario's arrest.

Upon commencing the interrogation, Agent Campbell read to Rosario the Miranda

warnings in English. Agent McDonough then translated each of the warnings into Spanish, (See

Ex. l and 3 for exact wording and translation), Rosario indicated he understood the warnings as

translated by Agent McDonough, by responding either "Yes" or "OK", Rosario was then

instructed to initial and sign the Miranda Waming form. (Ex. 2).

Agent Campbell conducted his questioning of Rosario in English. Rosario responded

mostly in English, but there were a few occasions at which Agent McDonough did provide

translation. Partway through the interview, Agent McDonough was replaced by Agent Astle,

whose native language was Spanish. According to Agent Campbell, Rosario never stated he

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didn't understand the questions, and on at least two occasions Agent Campbell asked Rosario to

confirm he understood. Prior to Rosario's arrest, all of the communications between "Peter" and

the CI that Agent Campbell listened to were spoken in English. Although not made clear on the

cvidentiary record, for the purpose of this motion the court assumes Rosario's native language is

Spanish.

Sometime during the interview of Rosario, after Miranda rights had been provided,Agent

Campbell learned that fellow agents had found drngs in a gray Toyota matching the description

of the vehicle "Peter" told the CI he would be in. The operator of the gray Toyota was a person

named Kelvin Mosques.

2. Discussion

Rosario is charged with aggravated trafficking in scheduled drugs, 17-A M.R.S.A.

§ 1105-A(l)(M). But the State also argues that the probable cause justifying the arrest of Rosario

is based on conspiracy to commit a crime pursuant to 17-A, M.R.S.A. §151. Generally, a

conspiracy is committed when two 01' more persons agree to commit a crime and one of the co­

conspirators takes a substantial step toward the commission of that crime. State v. Quirion, 2000

ME 103. !20. A conspiracy is born when a person, "with the intent that conduct be performed

which, in fact, would constitute a crime or crimes, .. agrees with one or more others to engage in

or cause the performance of such conduct." Id., !22; 17-A M.R.S.A. !151(1). And the statute

only requires that one party to a conspiracy have the requisite intent. Id., fn.3. The classification

of a conspiracy charge is one classification lower than the most serious crime that is the object of

the conspiracy. 17-A M.R.S.A. §151(]).

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A. Did law enforcement have a reasonable articulable suspicion to stop the vehicle
Rosario was occupying?

Whether or not there was an articulable suspicion to stop the vehicle may be moot, as the

State is not arguing this was an investigatory stop, but rather concedes lhe stop was made to

initiate an arrest. And if there was in fact probable cause to arrest, that would subsume a finding

of a reasonable articulable suspicion. State v. Lagasse, 2016 ME 158, ~ 21. The court will

however proceed sequentially and address this issue as raised by Rosario.

To conduct a constilutionally pennissible traffic stop, an officer must have, at the time of

the stop, an articulable suspicion that criminal conduct bas taken place, is occurring, or

imminently will occur, and the officer's assessment of the existence of specific and articulable

facts sufficient to warrant the stop must be objectively reasonable in the totality of the

circumstances. State v. Donatelli, 2010 ME 43, ~Il; State v. Lux, 1999 ME 136, ~8. The

suspicion for the stop must be based on information available at the time of the stop and cannot

be bolstered by evidence secured by the stop. State v. Nelson, 638 A.2d 720,722 (Me. 1994).

The reasonable suspicion standard requires more than mere speculation. Id.

At the time of the stop, through the process of setting up and investigating an organized

buy of drugs, the officers reasonably believed an individual who called himself "Peter" and

referred to himself as Arhenny Messon's brother, had agreed to travel to Houlton, Maine to sell

to the CI 32 oz. of Methamphetamine. The investigating officers also understood "Peter" was

from from out-of-state, Rhode Island, and that the vehicle he was in would have out-of-state

plates, and that "Peter" would be traveling with his driver. By way of cellular phone GPS

tracking, the agents reasonably believed that "Peter", or whoever was on the other end of the

phone communications with the CI, had traveled to Houlton to complete the sale, but upon

arriving near the location for the proposed sale, "Peter" called off the trnnsaction due to fear of

9
his seeing a police vehicle. And by the same GPS tracking, the agents reasonably believed

"Peter" was then headed south on I-95. The GPS tracking location data was accurate to within 25

meters, and the location data was being shared with the police officers on the road. The officers

on the road, Officers Fuller and Cotton, recognized the location data for the suspect being in the

immediate area where they were positioned, and matched the location of the vehicle(s) they

observed having out-of-state license plates. The video shows that there were two vehicles

travelling closely together in this location. At the moment the officers saw a vehicle with out-of­

state plates being in the location where the GPS location data indicated the suspect's phone was

located, the officers reasonably believed, and had an articulable suspicion, that tbe vehicle

contained the individual who had agreed with the CI to travel to Houlton to sell him drugs. And

at that moment, based on those same facts, the officers had an articulable suspicion that the drugs

would be with the suspect in the vehicle. Accordingly, when the officers stopped the vehicle they

had an articulable suspicion that criminal conduct had taken place, or was occuring, whether it be

drug trafficking, drug possession, or a conspiracy to commit such crime.

B. Did law enforcement have probable cause to arrest Rosario?

Law enforcement officers are authorized to make a warrnntless arrest under certain

circumstances, including when an officer has probable cause to believe that a person has

committed a Class A, Class B, or Class C crime. 17-A M.R.S.A. §15(l)(A)(2); State v. Lagasse,

2016 ME 158, ~13. Probable cause exists where facts and circumstances within the knowledge of

the officers and of which they have reasonably trustworthy information would warrant a prudent

and cautious person to believe that the arrestee did commit or is committing the felonious

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offense. Id. Probable cause includes the collective information known to the police and is nol

limited to the personal knowledge of the arresting officer, and the test is an objective standard.

Lagasse, at l)14. The probable cause standard is flexible and based on common sense. State v.

Flint, 2011 ME 20, l/12; see Texas v. Brown, 460 U.S. 730, 742, 103 S. Ct. 1535 (1983).

Although requiring more than mere suspicion, probable cause can be satisfied on less than the

quantum of proof necessary to establish a fact by a fair preponderance of the evidence. Id., see

also State v. Lux, 1999 ME 136,~10.

The same facts supporting an articulable suspicion support probable cause. This

investigation started when the CJ, who had previously proven to be reliable, brought to MDEA

information that Arhenny Messon had contacted him about doing some drug deals. Messon then

connected the Cl with a person he said was his brnther, who called himself "Peter". Both Messon

and "Peter" were from out-of-state. "Peter" and the Cl had several communications, all which

were. recorded and listened to by MDEA. After several phone calls "Peter" and the CJ agreed

"Peter" would travel to Houlton on December 18, 2019, and they would meet near the Houlton

Big Stop, where "Peter" would sell the CI 32 oz. of Methamphetamine in exchange for $10,000

to be paid then and the balance paid when the drugs were sold.

Via a warrant, MDEA was able to monitor the location of the phone "Peter" was using

via cellular GPS tracking. On December 18, 2019, Agent Dudley tracked the phone "Peter" was

using travel north along I-95 to Houlton to a location very close to the agreed meeting place.

When near the meeting place, the individual who called himself "Peter" telephoned the CI, using

the same phone number used throughout the transaction and being tracked, and told the CJ he

saw a vehicle he thought was a police vehicle and was calling off the deal. Agent Dudley then

rccei ved tracking data showing the same phone headed south on I-95, back in the direction it had

11
come from. The tracking evidence of the phone establising it traveled north to Houlton to the

agreed meeting spot conoborntes "Peter's" statementq to the CI that he would come to Houlton

to sell him drngs.The monitored phone calls and tracking information of the phone would

warrant a prudent and cautious person to believe the person on the other end of the phone being

monitored and tracked had agreed to travel to Houlton to complete a sale of Methamphetamine, a

drug trafficking offense.

Agent Dudley continued to monitor and trnck the phone as it headed south on 1-95. The

investigating agents and officers understood "Peter" was from out-of-state, and that the vehicle

"Peter" was in would have out-of-state plates, likely Rhode Island or Massachussetts, and he

would be traveling with his driver. Agent Dudley received, and forwarded to the MSP officers on

the highway, the GPS Iocatio11 data for the suspect phone. Officers Cotton and Fuller received

the location data, accurate to within 25 meters, showing the phone in the immediate location they

were each positioned. Sergeant Fuller accelerated south on I-95 and immediately found a vehicle

with out-of-stale plates. Similarly, Officer Cotton, who was stationary at mile 272, a location

very close to the last location data he just received for the phone, observed a vehicle with out-of­

state plates go past him with two occupants. Per the video of the stop, traffic on the highway was

sparse, making identification of the suspect vehicle by way of location more probable. (See Ex.9)

These facts would warrant a reasonable and cautious person to believe that the phone being

tracked and monitored was in the vehicle Officers Cotton and Fuller observed and stopped near

mile 272.

Thus far the State has established facts exist which would warrant a prndent and cautious

person to believe that the vehicle stopped contained the phone being tracked and monitored, and

that the person at the other end of the phone had agreed to a sale of Methamphetamine, a

12
conspiracy to commit a crime. So probable cause would exist to arrest the individual who was

associated with the phone.

The person arrested was Rosario, but at the time of the arrest, the actual phone had not

been found or seized. The State concedes that the two individuals in the stopped KIA were

effectively under arrest when placed in handc11ffs at the scene. Rosario asserts that probable

cause had not yet been established linking him to the activities. The court disagrees.

By investigating various background records, MDEA Agent Campbell had developed a

"hunch" that the person who was Arhenny Messon's brother and referred to himself as "Peter"

was Pedro Rosario. By the time of the December 18, 2019 organized buy, Agent Campbell had

obtained with Agent Gaddis' assistance a photograph of Pedro Rosario. The photograph of Pedro

Rosario was circulated amongst the officers during the pre-operation meeting, and they were told

Pedro Rosario was their suspect.

Just sernnds before Officer Fuller effected the stop of the KIA, Trooper Cotton is heard

on his radio telling other officers that "602", presumably referring to Officer Fuller, was behind

the car and that he had JD'd the two occupants in it. Agent Gaddis, who was the agent wl10

procured the photograph of Pedro Rosario, arrived on the scene just as the driver of the KIA had

been ordered to exit the vehicle. When the passenger of the IUA appeared confused by the

instructions given to him in English, Agent Gaddis gave him instructions in Spanish. Agent

Gaddis recognized the passenger to be Pedro Rosario, the person shown in the photograph

circulated at the pre-operation meeting. Following the instructions given by Agent Gaddis in

Spanish, Rosario exited the KIA and was placed in handcuffs. As previously discussed, probable

13
cause includes the collective information known to the police, not just the arresting officer, and

is an objective standard. State v. Laga.l'se, 2016 ME 158, ~/14.

Initially, Agent Campbell had only a hunch that "Peter" was Pedro Rosario. But when

Rosario was in fact arrested, it was no longer just a hunch. Again, the quantum of proof

necessaiy to establish probable cause, although more than mere suspicion, is less than the level

of fair preponderance of the evidence. Lux, ~10. Rosario was arrested after he was found in the

car that the police had stopped on the basis that it likely contained the phone possessed by a

person named "Peter" who had agreed to sell Metharnphetarnine, the phone which they had been

tracking and monitoring throughout the day. Rosario matched the additional evidence that

MDEA bad collected through its investigation- that the suspect "Peter" was from out of state,

and was Arhcnny's brother. And Rosario was found where MDEA expected to find "Peter". In

addition, Rosario was found with another individual, the driver of the vehicle, consistent with

"Peter's" phone conversations of having a driver. Finding Rosario where they did, with another

individual driving the vehicle, corroborated their beliefs that he was "Peter". By the time the

arrest was effected, facts existed which would warrant a prudent and cautious person to believe

Rosario was "Peter", who had agreed to the conspiracy to sell drugs. Accordingly, the court finds

probable cause existed to arrest Rosario.

C. Were Rosario's Fifth Amendment rights violated?

A defendant's statement made during a custodial interrogation may only be used against

him if the statement was made voluntarily after a knowing and intelligent waiver of his Fifth

Amemlment right against self incrimination. Miranda v. Arizona, 384 U.S. 436,444, 86 S.Ct.

14
1602 ([966). The prosecution may not use statements, whether exculpatory or inculpatory,

stemmir1g from custodial interrogation unless it demonstrates the use of procedural safeguards

effective lo secure the privilege against self incrimination. Id. Prior to any questioning, the

person must be warned that he has a right to remain silent, that any statement he does make may

be used as evidence against him, and that he has the right to the presence of an attorney, either

retained or appointed. Id.

Miranda itself indicates no talismanic incantation is required. California v. Prysock, 453

U.S. 355,359, 101 S .Ct. 2806 (1981). But the safeguards do include the now familiar Miranda

warnings- that the defendant be informed he has the right to remain silent, that anything he says

can be used against him in a court of law, that he has the right to the presence of an attorney, and

that if he cannot afford an attorney one will be appointed for him prior to any questioning. Rhode

i.l'land v. Innis, 446 U.S. 291, 297, 100 S. Ct. 1682 (1980), citing Miranda, p. 479.

A defendant may waive effectuation of the rights conveyed in the warnings provided the

waiver is made voluntarily, knowingly and intelligently. Moran v. Burbine, 475 U.S. 412,421,

106 S.Ct. 1135 (1986). First, the relinquishment must be voluntary, in the sense it was the

product of a free and deliberate choice, and not intimidation, coercion or deception. Second, the

waiver must be made with a full awareness of the nature of the right being abandoned and

consequences of the decision'. Id. Only if the totality of the circumstances surrounding the

interrogation, including the accused's characteristics, the conditions of the interrogation, and the

conduct of the of law enforcement officials, reveal both an uncocrced choice and the requisite

level of comprehension may a court properly conclude that Miranda rights have been waived.

, A suspect need not, however, understand the tactical advantage of remaining silent in order to
effectuate a valid waiver. United States v. Hernandez, 913 F.2d 1506, 1509 (Tenth Cir. 1990).

15
Avincola v. Stinson, 60 F. Supp. 2d 133, l58 (1999); citing Moran v. Burbine, 475 U.S. at 421.

The State bears the burden of establishing a knowing, intelligent, and voluntary waiver of

Miranda warnings by a preponderance of the evidence. State v. Coombs, 1998 ME 1, lJ 15.

As for translated Miranda rights, language barriers may inhibit a suspect's ability to

knowingly and intelligently waive his rights, but when a defendant is advised of his rights in his

native tongue and claims to understand such rights, a valid waiver may be effectuated. United

States v. Hernandez, 913 F.2d 1506, 1510 (Tenth Cir. 1990). The translation of Miranda rights

need not be pe1fect so long as the defendant understands those rights. Id., citing United States v.

Yunis, 859 F.2d 953,959 (D.C.Cir.1988).

In this case Agent Campbell interrogated Rosario in the conference room at MDBA

offices, with the door closed. Agent Campbell was in plain clothes, and was not carrying a

firearm. Agent McDonough was in a uniform, and had his service firearm. The interrogation

began at approximately 3:40 pm,just over an hour after the arrest. There is no evidence

suggesting Rosario was injured, ill, tired, or under duress. And there is no evidence suggesting

Rosario's decision to speak with the agent was a result of intimidation, coercion or deception.

Rather, the issue being raised by Rosario is that, due to Agent McDonough's translation, he was

not fully aware of the rights being abandoned and consequences of the decision, and therefore

the waiver was not made knowingly and intelligently. The court disagrees.

At the commencement of the interview, Agent Campbell read in English each of the

Miranda wamings as set forth on their Miranda Warning Form. (Ex. 2). After Agent Campbell

read each of the rights in English, Agent McDonough translated the right and stated it to Rosario

in Spanish. The parties stipulate that the translation of the transcription of the interview is an

accurate translation of what Agent McDonough stated to Rosario in Spanish. (Ex. 3). The rights

16
as stated by McDonough in Spanish, translated back into English, and Rosario's responses, are

as follows:

McDonough: Ah it need he 11111 tell you your rights.
Rosario: OK

McDonough: He to be an official of the law. Um he has questions for you. He need to
read you your rights. Do yon understand?
Rosario: Yes

McDonough: Yon have the right to remain silent. Do you understand that?
Rosario: Yes

McDonough: Anythings you ah say can and to be used against you a court of law. Do you
understand that?
Rosario: Aha (OK)

McDonough: You have um the right to speak with a lawyer and that this is present with
you when um you are interrogated. Do you understand?
Rosario: Aha (OK, Yes)

McDonough: OK, if you don't have the economic availability to contract/hire a lawyer,
one will be assigned to represent you before any interrogated. Do you understand?
Rosario: Aha (OK)

Agent Campbell also read an additional warning from their Miranda Warning form (Ex.

2). From the transcript of the interview, it is clear Agent McDonough initially had difficulty

forming a translation for this warning. After some failed attempts, Agent McDonough fully

restated a translation as follows:

McDonough: You have the right to pronounce silence, right to request a lawyer and can
proceed to answer any question, make any comment if you wish. If you decide to answer
the questions, you can stop at the moment you were saying and demand your right to
request a lawyer. This is .. Do you understand?
Rosario: Y cs

17
It is apparent that Agent McDonough had some difficulty forming translations for each of

the rights, but the court does not find that the translations were fatally flawed. The right to

remain silent was perfectly stated, and Rosario stated he understood. The warning that anything

he stated could be used against him in court was also sufficient. Granted, McDonough's

translation of "Anythings you ..say can and to be used against you a court of law." was not

proper grammar, as to be is the nnconjugated form of the verb that is conjugated to state will be.

So although not grammatically correct, the warning given was not substantively wrong. Rosario

was warned anything he said could be used against him in court, and he acknowledged

understanding.

The third and fourth warnings given by Agent McDonough were "You have um the right

to speak with a lawyer and that this is present with you when mn you are interrogated" and "if

you don't have the economic availability to contract/hire a lawyer, one will be assigned to

represent you before any interrogated". Again, Agent McDonough's translation lacked in pe1fect

grammar and diction, such as use of the word availability versus ability. But the third and fourth

warnings together advised Rosario he had the right to speak with a lawyer, and if he didn't have

the economic means to hire a lawyer, one would be assigned before he was interrogated. And

considering the third and fourth warnings collectively, Rosario was advised his right to a lawyer

began before he was interrogated, and was present with him during the interrogation. And

Rosario responded that he understood each of the warnings given, by his responses of "Aha",

interpreted as "OK". Again, the translation of Miranda rights need not be perfect. Hernandez,

913 F.2d at 1510.

The facts of this case are distinguishable from those of the case relied upon by Rosario,

United States v. Ho/et/a-Rosales, 728 F.3d 865 (Ninth Cir. 2103). Tn Botello-Rosales, testimony

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from lay and expert witnesses supported the court's finding that the translation using the term

"libre" resulted in an incorrect translation, it meaning "free as in being available or at liberty to

do something.." Bote/lo-Rosa.les, 728 F.3d at 867. This case does not present with translated

words having a totally different meaning than what Mira,ula. reql1ires. In Botello-Rosales a

translation was given that was wrong and misleading. A defendant receiving a wrong or

misleading translation would be none the wiser, and in such a case a waiver would be unreliable.

This case is different as the translation was not wrong, but rather was grammatically sloppy.

Certainly a sloppy translation could be hard to understand. But if a defendant indicates he

understands the rights that have been explained to him, even if stated in improper grarrunar, and

there is otherwise no evidence of not understanding the rights explained, the reliability of the

waiver would not be in question. There is no indication on this record that Rosario did not

understand the rights explained to him.

Also relevant in this case is that Rosario demonstrated he understood English. All of his

conversations with the CI negotiating the drug sale were in English. Apparently the first time

Rosario demonstrated an inability to understand English is when the Officer Fuller yelled

instrnctions to Rosario to exit the vehicle. Otherwise, Agent Campbell testified that after the

Miranda warnings were given, Rosario responded to all of his questions in English. To be sure

Rosario undertood, on at least two occasions, Agent Campbell asked Rosario to confirm he

understood, and he responded he did. The court has been provided only the initial eight minutes

of the interview. But in that brief excerpt, Rosario does begin to speak in English, when he states

"Uh, I just moved there. I just came from Santo Domingo and moved there". (Ex .3).

To recap, Agent Campbell stated the lvlira.nda. warnings in English. Agent McDonough

restated the warnings in Spanish. Rosario indictated he understood the warnings given. Although

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Spanish may be Rosario's native language, he also understands and speaks English to some

meaningful degree. Rosario always spoke to the CI in English, and most of his interview with

Agent Campbell was in English. There is no evidence that Rosario was coerced, intimidated, or

decieved into speaking with Agent Campbell. And there is no evidence that he was physically,

mentally or emotionally compromised in any way. The comt finds that Rosario was sufficiently

warned of his Fifth Amendment rights as required by Miranda, and, in the totality of the

circumstances surrounding his interrogation, that his waiver of those rights was made with a full

awareness of the nature of the rights abandoned, and the consequences of his decision t.o abandon

them. Moran v. Burbine, 475 U.S. at 421. The State has proven by a preponderance of the

evidence that Rosario knowingly, intelligently, and voluntarily waived his Miranda rights.

The finding and order of the comt is:

Defendants Pedro Rosario's motion to suppress is DENIED.

··r-// "16n.
Dated:~./"\~2021

.Justice, Superior Court

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