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UNITED STATES v. AGOSTINI

April 6, 1993

UNITED STATES OF AMERICA
v.
MANUEL AGOSTINI, Defendant.



The opinion of the court was delivered by: LOUIS F. OBERDORFER

 This matter is before the Court on the defendant's motions to suppress tangible evidence and statements. Hearings on the motions were held on November 3, 1992 and April 1, 1993, and argument was heard on April 5, 1993. On the basis of the findings detailed below, defendant's motions will be denied.

 I. FACTS

 The events leading up to the arrest of the defendant occurred on July 7, 1992. Detective Ronnie Hairston of the District of Columbia Metropolitan Police Department testified that on that date he was "working interdiction" with another detective at the Greyhound bus station located in the 100 block of L Street, N.E., Washington. Tr. I at 5. *fn1" At approximately 6:18 p.m., Hairston observed Mr. Agostini get off a Greyhound bus that had arrived from New York City, walk through the bus station, and exit the station onto L Street. Mr. Agostini, who was carrying a gray tote bag, then walked along the sidewalk on L Street. Detective Hairston approached the defendant and touched him on the shoulder. According to Detective Hairston's testimony, Hairston asked Mr. Agostini if he could talk to him, and Agostini said "yes." Detective Hairston next (again, according to his own testimony) asked the defendant if he could speak English, and Mr. Agostini responded "yes." On cross-examination, Detective Hairston was asked if he knew that Mr. Agostini was Hispanic, and responded: "I heard Mr. Agostini speak in Spanish, so when I first approached him, I asked him if he spoke English." Id. at 16-17.

 Next, Hairston asked the defendant if he could see his bus ticket. Mr. Agostini responded by giving Hairston the ticket. Detective Hairston looked at the ticket and gave it back to Mr. Agostini. Detective Hairston then asked the defendant where he was going. Mr. Agostini responded, according to Hairston, "16th and Park Road." Id. at 7. Then Hairston asked the defendant if the gray tote bag he was carrying belonged to him, and Mr. Agostini said "yes." Detective Hairston then explained why he was talking to the defendant, stating: "that I worked at the bus station, and we had a problem with drugs coming into the District of Columbia from New York . . . and [that] I talked to passengers, and I asked the passengers for permission to search their luggage and their person for drugs and weapons, and then I asked him if he understood." Id. at 20. Mr. Agostini responded in the affirmative, according to Hairston. Id. at 8. Next, Detective Hairston asked the defendant if he was carrying any drugs. Mr. Agostini said "no." Id.

 Detective Hairston testified that he then asked Mr. Agostini if he could search his person and the tote bag, and that Mr. Agostini answered "yes." Id. at 9. Then, according to Hairston:

 
Mr. Agostini handed me the tote bag. I placed the tote bag on the sidewalk, and I started to search the bag. Mr. Agostini had his bus ticket, he had balled it up in his hand, he told me he was going to put his bus ticket in the trash can. I told him okay, and I continued to search the bag. As I was searching the bag, Mr. Agostini started to run.

 Id. at 9-10. Detective Hairston testified that he was "already into" the bag at the point when the defendant began running. *fn2" Id. at 10, 15. Detective Hairston ran after the defendant, caught him, and placed him under arrest after reading him his rights. At that point, Hairston testified, Mr. Agostini stated that he was carrying the drugs for his cousin.

 Detective Hairston never advised Mr. Agostini that he had the right to decline consent to a search of the tote bag. Hairston did not take any notes or recordings at the scene of the encounter with the defendant. Id. at 13.

 Mr. Agostini testified through an interpreter. His testimony as to the events that transpired on July 7, 1992 was largely consistent with that of Detective Hairston. However, he explained that he understood few of the words spoken by Hairston. For example, Mr. Agostini understood from the word "English" that he was being asked whether he spoke English, and responded "yes" because he did not know how to say that he spoke only "certain words in English." Tr. II at 5. He also understood some of the words spoken by Hairston that are similar to their Spanish equivalents, such as "ticket," "police," and "drug." Id. at 4-6. He testified that he did not, however, understand the complete sentences spoken by Hairston. Mr. Agostini did not initially understand the detective's references to the tote bag. When Detective Hairston began pointing to the bag, Mr. Agostini "felt as though he was giving me an order" and therefore gave him the bag. Id. at 6. He testified: "That's why I handed it to him because in Puerto Rico that is the way the law works. When the policeman stops you, he doesn't ask you for permission. He opens the bag." Id. Mr. Agostini stated three times that he understood Detective Hairston's reference to the bag to be an "order." Id. at 6, 7, 8. On cross-examination, however, when asked to relate the instances in which he received and obeyed "orders" from police officers in Puerto Rico, the defendant identified only routine traffic stops.

 The only explanation given by Mr. Agostini of his running from Detective Hairston was the following: "What I did was to run with the ticket in my hand. And I stopped and sat down and waited for him. He did not catch me running." Id. at 22. On cross-examination, Mr. Agostini was asked how long he had been in the United States, to which he responded, "It's going to be five years." Id. at 11. He further testified that he had worked at various jobs while in the mainland United States, including painting buildings, working on a delivery truck, and working as an assistant to an automobile mechanic. Id. at 11-12, 15. Mr. Agostini also testified that he had never had a driver's license. Id. at 12.

 Mr. Agostini referred at several points to his drinking problem. Id. at 4, 18, 22. He testified that he was drunk when he was questioned and arrested by Detective Hairston. An empty bottle of rum was found in the gray tote bag that the defendant was carrying. Tr. I at 25. In addition, defense counsel represented that the defendant had lost some of his front teeth during past drinking binges, apparently as a result of accidents.

 Finally, Detective Jesus C. Gonzales of the Metropolitan Police Department testified for the United States. Detective Gonzales testified that on July 7, 1992, between 6:50 and 7:00 p.m., Detective Hairston approached him at the narcotic and special investigation division headquarters and asked him to read Mr. Agostini his rights in the holding cell. The reason that Hairston gave to Gonzales for this request was that the defendant was "of Spanish background," and Gonzales is fluent in Spanish. Tr. II at 27, 36. Detective Gonzales testified that he introduced himself and advised the defendant of his rights in English, reading from his own personal "PD-47" form. Id. at 27. Gonzales then went to retrieve another PD-47 form for the defendant to sign. He testified that he was unable to ...


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