IN THE UNITED STATES DISTRICT COURT FOR THE 

MIDDLE DISTRICT OF ALABAMA 

NORTHERN DIVISION 

UNITED STATES OF AMERICA, ) 

 ) 

 v. ) CR. NO: 2:06-CR-200-WHA 

 ) 

HECTOR R. SILVA ) 

MOTION FOR LEAVE OF COURT TO FILE MOTION

 

 COMES NOW, the defendant Hector R. Silva, and moves this Honorable Court 

for leave to file motions outside the time set forth in the Court’s Order on Arraignment, 

and in support of said motion states the following: 

 1. On September 1, 2006, this Court issued an Order on arraignment. 

 2. This Court set a September 22, 2006 deadline for pretrial motions filed 

pursuant to Rule 12(b), Federal Rules of Criminal Procedure. 

 3. On September 26, 2006, the undersigned counsel entered a notice of 

appearance for the defendant, Hector R. Silva. 

 4. The undersigned counsel was not an attorney of record and did not receive 

notice of the Court’s Order on Arraignment until such time as the deadline to file Rule 

12(b), F.R.Cr.P. had passed. 

 5. Attached to this motion as exhibits are defendant Hector R. Silva’s 

motions to suppress. 

 6. The attached motions are made in good faith and are not for the purpose of 

delay. 

 7. In the interest of justice, the defendant requests this Court grant this 

motion for leave to file these motions. 

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Case 2:06-cr-00200-WHA-CSC Document 65 Filed 11/07/2006 Page 1 of 2
 8. The undersigned affirms to this Court that he attempted to contact 

Assistant United States Attorney Christopher A. Snyder to discuss this Motion for leave 

to file but was unable to meaningfully discuss this with Mr. Snyder due to scheduling 

conflicts. 

 WHEREFORE, PREMISES CONSIDERED, the defendant prays this Honorable 

Court enter an order granting this motion for leave to file additional motions and set the 

attached motions for a hearing. 

 /s/ Matthew P. Teague_____

 Matthew P. Teague (TEA010) 

 Attorney for Hector R. Silva 

Of Counsel: 

Matthew P. Teague, Esq. 

138 Adams Avenue, Second Floor, Suite 3 

Post Office Box 586 

Montgomery, AL 36101 

(334) 834-4500 (Telephone) 

(334) 834-4500 (Facsimile) 

CERTIFICATE OF SERVICE

I hereby certify that on November 6th, 2006, I electronically filed the foregoing with the 

Clerk of Court using the CMF/ECF system which will send notification of such filing to 

the following: Christopher A. Snyder, Jay Lewis and all other attorneys of record. 

 /s/ Matthew P. Teague__

 Matthew P. Teague, Esq. 

 

 

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Case 2:06-cr-00200-WHA-CSC Document 65 Filed 11/07/2006 Page 2 of 2
IN THE UNITED STATES DISTRICT COURT FOR THE MIDDLE DISTRICT 

OF ALABAMA 

NORTHERN DIVISION 

UNITED STATES OF AMERICA, ) 

 ) 

 v. ) CR. NO: 2:06-CR-200-WHA 

 ) 

HECTOR R. SILVA ) 

DEFENDANT HECTOR R. SILVA’S MOTION TO SUPPRESS 

 COMES NOW the defendant, HECTOR R. SILVA, by and through his 

undersigned counsel, and moves this Honorable Court to suppress evidence pursuant to 

Rule 12(b), Federal Rules of Criminal Procedure and all other authorities listed herein, 

and as grounds therefore shows as follows: 

I. ISSUES PRESENTED 

 A. Whether Alabama State Troopers violated defendant Hector R. Silva’s 

fourth amendment rights by unreasonably prolonging a traffic stop without substantial 

justification? 

 B. Whether Alabama Bureau of Investigation officers violated defendant 

Hector R. Siva’s Fifth Amendment rights by continuing to question Mr. Silva after he 

requested counsel? 

II. FACTS1 

 A. The initial traffic stop of Mr. Silva. 

1. On July 13, 2006, Alabama State Trooper Will Barnes performed a traffic 

stop of a blue Ford F-150, driven by Mr. Silva, for speeding. 

 

1

 The facts set forth herein were taken from reports issued by Alabama State Troopers and Alabama Bureau 

of Investigation agents and were produced to the defendant by the United States Attorney’s office pursuant 

to a discovery request. 

Case 2:06-cr-00200-WHA-CSC Document 65-2 Filed 11/07/2006 Page 1 of 9
 2. During the course of the traffic stop, Trooper Barnes obtained Mr. Silva’s 

driver’s license and proof of insurance, patted Mr. Silva down for officer safety, 

questioned Mr. Silva regarding his destination, determined that Mr. Silva primarily spoke 

Spanish but understood some English, ascertained the city of his departure, questioned 

Mr. Silva regarding his employment, questioned Mr. Silva about his current home 

address, contacted the BLOC HIDTA Watch Center to run Mr. Silva’s information, 

inquired into Mr. Silva’s arrest record, asked questions about Mr. Silva’s passenger (his 

sister in law and co-defendant Rosa E. Rincon), and sent a radio dispatch to Corporal 

Chris Brown for assistance. 

 3. Trooper Barnes then received a dispatch from BLOC allegedly informing 

him Mr. Silva’s address is a known address for drug smuggling, was informed Mr. Silva 

had prior arrests for DUI and an assault, and was informed Mr. Silva’s commercial 

driver’s license was not going to be renewed. 

 4. Trooper Barnes observed that Mr. Silva appeared nervous and breathed 

heavily during questioning by Trooper Barnes. 

 5. Trooper Barnes finished the warning citation, gave it Mr. Silva to sign and 

returned to Mr. Silva the signed, completed citation, his driver’s license and the license of 

his passenger, Ms. Rincon. 

 6. Although the issuing of the citation was complete and his license returned, 

Trooper Barnes restrained Mr. Silva in his police vehicle for continued questioning. 

 7. Trooper Barnes articulated reason for continuing Mr. Silva’s detention 

was Mr. Silva’s inconsistent statements regarding his arrest record and his alleged 

nervousness during questioning. 

Case 2:06-cr-00200-WHA-CSC Document 65-2 Filed 11/07/2006 Page 2 of 9
 8. After the citation was issued, Trooper Barnes questioned Mr. Silva 

regarding the presence of weapons, cocaine, heroin, marijuana, and methamphetamine in 

Mr. Silva’s vehicle. 

 9. Mr. Silva responded no to each of Trooper Barnes questions. 

 10. After continued questioning by Trooper Barnes, all while being restrained 

in the police vehicle and without being informed of his right to leave the vehicle, Trooper 

Barnes asked Mr. Silva verbally for consent to search the vehicle in both Spanish and 

English, to which Mr. Silva did not respond. 

 11. Trooper Barnes then presented Mr. Silva with a consent to search form 

written in Spanish which Mr. Silva signed. 

 12. Pursuant to a search of the vehicle, Trooper Barnes and Corporal Brown 

discovered a quantity of substance believed to be cocaine. 

B. The questioning of Mr. Silva by Alabama Bureau of Investigation Agents 

and State Troopers. 

 13. On July 13, 2006, after the routine traffic stop described in paragraphs 1-

12 above, Alabama State Trooper Will Barnes arrested Mr. Silva for an alleged violation 

of Title 21, United States Code Section 841(a)(1). 

 14. On July 13, 2006, Trooper Barnes transported Mr. Silva to the Alabama 

Bureau of Investigation’s (“ABI”) Investigative Operations Center (“IOC”) in 

Montgomery, Alabama for further investigation. 

 15. At the IOC, ABI Agents Joe Herman and Angel Rodriquez advised Mr. 

Silva of his Fifth Amendment rights which Mr. Silva acknowledged. 

Case 2:06-cr-00200-WHA-CSC Document 65-2 Filed 11/07/2006 Page 3 of 9
 16. After acknowledging his rights as read by the ABI agents, Mr. Silva 

requested legal counsel. 

 17. Despite Mr. Silva’s request for counsel, Agent Rodriquez stated to Mr. 

Silva that if Mr. Silva wanted to “cooperate” with agents of the ABI “his window of 

opportunity was short.” 

 18. ABI Agents then proceeded to question Mr. Silva further regarding his 

alleged violation of Title 21, United States Code Section 841(a)(1). 

 19. During questioning subsequent to Mr. Silva’s request for counsel, Mr. 

Silva made incriminating statements to ABI agents. 

III. ARGUMENT/GROUNDS FOR SUPPRESSION 

 A. Whether Alabama State Troopers violated defendant Hector R. 

Silva’s fourth amendment rights by unreasonably prolonging a traffic stop without 

substantial justification? 

The Fourth Amendment to the United States Constitution protects the right of 

persons to be free from unreasonable searches and seizures. A seizure takes place 

"whenever a police officer accosts an individual and restrains his freedom to walk away." 

United States v. Perkins, 348 F.3d 965, 969 (11th Cir. 2003). Traffic stops qualify as 

seizures under the Fourth Amendment. Id. 

 Under a Fourth Amendment analysis, an officer's investigation of a traffic stop 

must be "reasonably related in scope to the circumstances which justified the interference 

in the first place" and must be of a limited duration. Terry v. Ohio, 392 U.S. 1, 20, 88 S. 

Ct. 1868, 1879, 20 L. Ed. 2d 889 (1984). Ordinarily, when a citation or warning has been 

issued and all record checks have been completed and come back clean, the legitimate 

Case 2:06-cr-00200-WHA-CSC Document 65-2 Filed 11/07/2006 Page 4 of 9
investigative purpose of the traffic stop is fulfilled, and the driver's license and other 

documents should be returned. United States v. Simms, 385 F.3d 1347,1354 (11th Cir. 

2004)(citing United States v. Jones, 269 F.3d 919, 925 (8th Cir. 2001)( holding that the 

legitimate investigative purposes of the traffic stop were completed when State Trooper 

completed this initial investigation and determined that the driver was neither tired nor 

intoxicated, that his license and registration were valid, and that there were no 

outstanding warrants for his arrest). The stop "may not last any longer than necessary to 

process the traffic violation unless there is articulable suspicion of other illegal activity." 

United States v. Purcell, 236 F.3d 1274, 1277 (11th Cir. 2001). The officer's reasonable 

suspicion cannot be just a mere hunch or based on circumstances which "describe a very 

large category of presumably innocent travelers." Reid v. Georgia, 448 U.S. 438, 441, 65 

L. Ed. 2d 890, 100 S. Ct. 2752 (1980). 

 The United States Supreme Court has noted that a traffic stop in and of itself is an 

unsettling show of authority that may create substantial anxiety and that nervousness is 

often related to the fact that a person is being momentarily detained by an authority figure 

with police power over him. United States v. Perkins, supra (quoting Delaware v. Prouse, 

440 U.S. 648, 653, 59 L. Ed. 2d 660, 99 S. Ct. 1391 (1979)). The Eleventh Circuit 

requires more than the innocuous characteristics of nervousness or an out-of-state license 

for giving rise to reasonable suspicion. Perkins, 348 F.3d at 971 (quoting United States 

v. Pruitt, 174 F.3d 1215, 1221 (11th Cir. 1999)(holding that the fact that the driver was 

Hispanic and had an out-of-state license plate was not enough to detain him beyond the 

issuance of the speeding ticket). Further, the Eleventh Circuit stated, “Being Mexican, 

having few pieces of luggage, being visibly nervous or shaken during a confrontation 

Case 2:06-cr-00200-WHA-CSC Document 65-2 Filed 11/07/2006 Page 5 of 9
with a state trooper, or traveling on the interstate with Texas license plates (not yet a 

crime in Alabama) . . . fail to suggest that appellant . . . [was] engaged in any criminal 

activity other than speeding on the highway." Id. (quoting United States v. Tapia, 912 

F.2d 1367, 1371 (11th Cir. 1990)). A driver’s inconsistent answers regarding his 

criminal record or previous arrests are not an articulate reason to prolong a search of a 

vehicle or the seizure of the driver as innocent travelers are reluctant to admit such arrests 

because it has the effect of casting unwarranted suspicion upon that person. United 

States v. Jones, supra. 

 In the instant case, Trooper Barnes issued a warning citation to Mr. Silva, an 

immigrant day-laborer who does not speak fluent English and is not well educated, 

signaling an end to the traffic stop. After the citation was issued, Trooper Barnes 

unreasonably detained Mr. Silva by keeping him in his police vehicle for further 

questioning in violation of the principles set forth above. Trooper Barnes justified this 

continued questioning of Mr. Silva based on inconsistent statements regarding his arrest 

record and his supposed apparent nervousness, each of which has been determined to be 

an invalid reason to prolong a traffic stop because it is so common to so many drivers 

faced with the authority of a police officer. 

 Trooper Barnes unnecessarily prolonged his traffic stop of Mr. Silva based on a 

hunch without any justifiable suspicion of illegal activity in violation of the Fourth 

Amendment. Therefore, this Court should suppress the evidence obtained during the 

search. 

Case 2:06-cr-00200-WHA-CSC Document 65-2 Filed 11/07/2006 Page 6 of 9
 B. Whether Alabama Bureau of Investigation officers violated defendant 

Hector R. Siva’s Fifth Amendment rights by continuing to question Mr. Silva after 

he requested counsel? 

 The Fifth Amendment to the United States Constitution commands that no person 

“'shall be compelled in any criminal case to be a witness against himself.'" Miranda v. 

Arizona, 384 U.S. 436, 86 S. Ct. 1602, 16 L. Ed. 2d 694 (1966). It is this standard that 

guides criminal courts in determining whether an incriminating statement or confession 

made against oneself is voluntary. Miranda v. Arizona, supra. 

 The fifth amendment to the Constitution requires that when a person is advised of 

rights during custodial interrogation and the person requests a lawyer, all questioning 

must cease. United States v. Johnson, 812 F.2d 1329, 1331 (11th Cir. 1986)(citing 

Miranda v. Arizona, supra). "This is a 'rigid rule that an accused's request for an attorney 

is per se an invocation of his fifth amendment rights, requiring that all interrogation 

cease.'" Id. at 1331 (quoting United States v. Herrera, 711 F.2d 1546, 1557 (11th Cir. 

1983))(in turn quoting Fare v. Michael C., 442 U.S. 707, 719, 99 S. Ct. 2560, 2569, 61 L. 

Ed. 2d 197 (1979)). 

 In United States v. Johnson, supra, the Eleventh Circuit Court of Appeals 

specifically addressed the issue raised by this motion, namely offering to help a defendant 

if he cooperates with arresting or investigation officers or agents. The Eleventh Circuit 

stated, “While stating to an accused in custody that the criminal justice system will be 

explained sounds innocent enough, those familiar with the criminal arena are well aware 

of the fact that such an ‘explanation’ is often designed to inform the accused that 

cooperation may be beneficial.” Johnson at 1331. The Eleventh Circuit expressly 

Case 2:06-cr-00200-WHA-CSC Document 65-2 Filed 11/07/2006 Page 7 of 9
forbade the “good guy routine” and questions such as "Do you want to know what will 

happen to you?" and other statements made by law enforcement officers implying that 

law enforcement officers will "be good if the accused will be good" and unequivocally 

held that such statements are a violation of the Fifth Amendment which cannot be 

rectified using a harmless error analysis. Id. The Eleventh Circuit admonished officers 

and investigators to “remain close to the ‘bright line’: interrogation must cease when an 

accused in custody requests the presence of a lawyer before further interrogation.. Id. at 

1331. 

 According to their own report, ABI agents Herman and/or Rodriguez continued to 

question Mr. Silva subsequent to Mr. Silva’s request for an attorney. By so doing, 

Agents Herman and Rodriguez violated Mr. Silva’s Fifth Amendment right to be a 

witness against himself in a criminal case. Regardless of ABI agents Herman’s and 

Rodriguez’s intention, be it an honest attempt to help Mr. Silva or a ruse to obtain an 

adverse statement, their actions were a clear violation of Mr. Silva’s Fifth Amendment 

rights. Each and every statement made by Mr. Silva after his request for an attorney is a 

violation of the Fifth Amendment and must be suppressed by this Honorable Court. 

IV. CONCLUSION

 Under the exclusionary rule, evidence obtained in an encounter that is in violation 

of the Fourth Amendment, including the direct products of police misconduct and 

evidence derived from the illegal conduct, or "fruit of the poisonous tree," cannot be used 

in a criminal trial against the victim of the illegal search and seizure. United States v. 

Terzado-Madruga, 897 F.2d 1099, 1112 (11th Cir. 1990). Wherefore, premises 

considered, the defendant requests this Honorable Court set this matter for a hearing and 

Case 2:06-cr-00200-WHA-CSC Document 65-2 Filed 11/07/2006 Page 8 of 9
thereafter enter an Order suppressing the evidence obtained for the reasons set forth 

above. 

 /s/ Matthew P. Teague_____

 Matthew P. Teague (TEA010) 

 Attorney for Hector R. Silva 

Of Counsel: 

Matthew P. Teague, Esq. 

138 Adams Avenue, Second Floor, Suite 3 

Post Office Box 586 

Montgomery, AL 36101 

(334) 834-4500 (Telephone) 

(334) 834-4500 (Facsimile) 

CERTIFICATE OF SERVICE

I hereby certify that on November 6th, 2006, I electronically filed the foregoing with the 

Clerk of Court using the CMF/ECF system which will send notification of such filing to 

the following: Christopher A. Snyder, Jay Lewis and all other attorneys of record. 

 /s/ Matthew P. Teague__

 Matthew P. Teague, Esq. 

 

 

 

Case 2:06-cr-00200-WHA-CSC Document 65-2 Filed 11/07/2006 Page 9 of 9