Mitchell is readily distinguished: it involved a detention by police, id. at 2, and therefore falls outside the scope of Mendenhall. Where, as here, an encounter between police and a citizen does not constitute a seizure, the officer's failure to advise the citizen of his right to walk away or refuse to respond does not reduce its consensual nature. United States v. Brady, Crim. No. 87-0107 at 4 (D.D.C.June 4, 1987, J. Gesell), aff'd, 842 F.2d 1313, 1315 n.5 (D.C.Cir. 1988).
Nonetheless, the Court agrees that application of the Mendenhall "reasonable person" test to these facts does seem to require more than merely going down a checklist of indicia presented by the Government. It should be obvious that Reyes would not want to hand contraband over to police (this may well have been manifested by the obvious protectiveness with which he regarded it), and that he did so only in response to Brennan's request. As one court has noted regarding any encounter initiated by a law enforcement official: "Any agent worthy of the calling expects cooperation and knows how to get it. Implicit in the introduction of the agent and the initial questioning is a show of authority to which the average person encountered will feel obliged to stop and respond. Few will feel that they can walk away or refuse to answer." Illinois Migrant Council v. Pilliod, 398 F. Supp. 882, 899 (N.D. III. 1975), cited in 3 W. LaFave, Search and Seizure § 9.2(h) at 410 (2d ed. 1987).
It seems unwise to ignore the reality that such pressure is inherent in any encounter initiated by police. But the Court's function is not to eradicate such pressure; rather, it should only assure that the officer did not add to it in a manner thought to be offensive by a reasonable person, recognizing that a reasonable person is often willing to co-operate with law enforcement officials in apprehending criminals or preventing crime. Gomez v. Turner, 217 U.S. App. D.C. 281, 672 F.2d 134, 141-142 (D.C. Cir. 1982); see LaFave at 410-415.
The Court is satisfied that Sergeant Brennan and Detective Zattau did not unreasonably add to the pressure on Reyes. Sergeant Brennan neither accosted Reyes nor summoned him; rather, he approached him. His demeanor was to inquire and request, not demand; his tone was conversational and polite, not authoritarian or harassing. His method of identifying himself by showing an identification folder with his photograph, rather than a badge, seemed particularly calculated to assure a reasonable person of his bona fides without pressing upon him the weight of his authority. And, despite the initial assent, he waited until Reyes affirmatively handed over his bag before undertaking to search it. Meanwhile, Detective Zattau remained discretely in the background, undetected by Reyes, until after consent to search had been clearly obtained, and then made his presence felt only to an extent sufficient to protect his now vulnerable partner.
Therefore, the court finds the cocaine obtained from the search of Reyes' bag to be admissible in evidence.
Admissions by Reyes
According to evidence presented at the hearing, Reyes was not fully informed of his rights under Miranda v. Arizona, 384 U.S. 436, 16 L. Ed. 2d 694, 86 S. Ct. 1602 (1966), until after he was taken to the Indiana Avenue Station, where he was presented with a card from which to read them.
The Court notes that this procedure is adequate to waive Reyes' Fifth Amendment right not to incriminate himself. United States v. Bailey, 468 F.2d 652, 659-660 (5th Cir. 1972). However, any statements made by Reyes prior to the time that he read and signed the card will not be admissible, unless they fall outside the protection of Miranda.
Reyes made some statements in particular, while in custody but prior to receiving his Miranda warnings, which the government contends are not protected by Miranda and therefore should not be suppressed: shortly after he was arrested, Reyes asked the officers repeatedly if they could let him go. Without commenting on their relevance at this stage, the Court finds that these were volunteered statements by Reyes, and in particular they were not in response to any utterance by either officer. Therefore, they are admissible despite the absence of a Miranda warning. "Volunteered statements of any kind are not barred by the Fifth Amendment. . . ." United States v. Foskey, 204 U.S. App. D.C. 245, 636 F.2d 517, 521 (D.C. Cir. 1980) quoting Miranda, 384 U.S. at 478. There was no evidence at the hearing that the statements by Reyes were a response to interrogation by the officers, or to words or actions on their part which they should have known were reasonably likely to elicit the statements. Therefore, the Court finds they were voluntary, and not protected by Miranda. Rhode Island v. Innis, 446 U.S. 291, 300 - 301, 64 L. Ed. 2d 297, 100 S. Ct. 1682 (1987).
Finally, there is one other statement by Reyes made under circumstances that were unclear at the hearing. It occurred while Detective Zattau was weighing the cocaine found in the search, when he was asked by Sergeant Brennan how much it weighed. Reyes, present in the same room, said it weighed one pound (which turned out to be accurate). If the response by Reyes was made prior to his execution of the Miranda warnings card, it will be suppressed despite the government's assertion that it was voluntary. Although Sergeant Brennan testified that his question was directed to Detective Zattau, his subjective intent is not enough. The government produced no additional evidence that an objective observer, with the same knowledge of Reyes as Sergeant Brennan had at that point, would not, on the sole basis of hearing Brennan's question, infer that it was designed to elicit the response made by Reyes. 1 C. Wright, Federal Practice and Procedure § 76.1 (2d ed. 1982).
It is therefore
ORDERED, that the cocaine found in the search of Reyes' bag, along with his request to be let go once he was taken into custody, will not be suppressed. However, his statement that the cocaine weighed one pound will be suppressed, unless the government can show it was made after he signed the Miranda warning card.