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September 30, 1991


Appeal from the Superior Court of the District of Columbia; Hon. Eric H. Holder, Trial Judge.

Ferren and Schwelb, Associate Judges, and Belson, Senior Judge.*

The opinion of the court was delivered by: Schwelb

Nicholas Gomez was found guilty at a stipulated bench trial of three misdemeanor weapons offenses. *fn1 On appeal, he contends that the trial Judge committed reversible error by denying his dispositive pretrial motions to suppress tangible evidence (the pistol and ammunition), as well as an inculpatory pretrial statement which Gomez made while in police custody following his arrest. We affirm.


A. The arrest.

Officer Robert LoProto of the Metropolitan Police Department testified at the hearing on Gomez' motions that on December 9, 1988, at approximately 10:00 p.m., he monitored a radio run reporting that, according to an anonymous tipster, subjects were dealing drugs out of a vehicle in the rear of 1223 N Street, N.W. Approximately four minutes after hearing the radio run, Officer LoProto and another officer, both in uniform, arrived at the scene of the alleged drug activity. The "rear" of 1223 N Street is the middle of a narrow alley which runs between 12th and 13th streets.

Officer LoProto testified that he was familiar with this alley because he routinely patrolled the area. He knew that drugs were frequently sold and consumed in the vicinity of the alley. With the other officer behind him, Officer LoProto entered the alley on foot and saw two automobiles side by side. He approached the vehicles and discovered that four people were sitting in one, an Audi, and that there were two people in the other. The alley was dark, and there were no lights on in either car.

Officer LoProto testified that, upon approaching the vehicles, he asked the occupants to step out of them. After all six of them had done so, he looked into the Audi from his position outside the passenger side of the vehicle. With the help of the dome light *fn2 and his own flashlight, Officer LoProto observed a pistol lying, in plain view, on the rear floor of the car, slightly towards the passenger side. The officer removed the pistol and arrested Gomez, who had been sitting in the seat nearest the pistol.

The defense presented the testimony of Jaime Gusman, another occupant of the Audi, and of Gomez himself. *fn3 Gomez, who came to this country from El Salvador and testified that he spoke little English and could not read or write either English or Spanish, testified through an interpreter. Both Gusman and Gomez asserted that the officers roughly ordered them out of the car. Each claimed that the pistol was not in plain view and that it was recovered only after a thorough search of the vehicle, including the trunk. Both of the defense witnesses stated that, upon locating the weapon, Officer LoProto told them not to move "or I'll blow your fucking head off," or words to that effect. Gusman also claimed that he was punched in the face and kicked in the knee by the police.

B. The inculpatory statement.

Gomez and one of his companions were arrested and taken to the Third District station house. The officers relieved Gomez of his shoe laces and his keys. They handcuffed him to a table by his left wrist. Officer LoProto presented Gomez with a Spanish-language "PD-47" (waiver of rights form). He left Gomez with Officer Jose Gonzalez, who spoke some Spanish.

Officer Gonzalez testified that he read Gomez the Spanish version of the Miranda *fn4 rights appearing on the PD-47. He asked Gomez each of the four "waiver of rights" questions printed on the reverse of the form. Gomez responded "si" to each question, indicating that he understood his rights and was willing to answer questions without an attorney present. Officer Gonzalez said he then instructed Gomez to write his responses on the PD-47, and to sign the form. Officer Gonzalez and Officer LoProto watched as Gomez completed the PD-47. After signing the PD-47, Gomez admitted that the pistol belonged to him. He told the officers that he was confessing because he did not want his friend to get into trouble.

Gomez testified, in substance, that the officer who gave him directions with respect to the rights card spoke a mixture of English and defective Spanish, and that he did not understand what the officer was saying. He claimed that the officer wanted him to sign the card, and that he explained to the officer that he did not know how to write. Thereafter, according to Gomez, the officer

stared at me. He put it on a piece of paper and said put it -- trace it over here to this one. I wrote it there. He said this isn't anything, you will get out tomorrow.

Q. Now, why did you trace the words si, si, si, si?

A. He told me to.

Q. Did you feel that you had the right not to write the words si, si, si, si if you so chose?

A. Me?

Q. Yes?

A. No.

Q. Did you understand in any way the writing that was on the piece of ...

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