to understand English. Assistant Public Defender Beth Brinkmann met with the defendant on July 8, 1992. After she began asking him questions, she "realized he didn't understand me, he could not answer my questions. . . . He just gave me a blank stare." Id. at 29. Janice Bergin, of the District of Columbia Pretrial Services Agency, met with Mr. Agostini on July 16, 1992. She testified that there was a "language problem" with Mr. Agostini, and that she therefore used an interpreter. Id. at 37.
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 find a PD-47 written in English after searching in two locations at the station. Id. at 29. Detective Gonzales then gave the defendant a Spanish-language PD-47 form, which Mr. Agostini read and signed.
The defendant first argues that his interrogation constituted an illegal "seizure" in violation of the Fourth Amendment. Whether an individual has been "seized" for purposes of the Fourth Amendment turns on whether "a reasonable person would feel free to disregard the police and go about his business." Florida v. Bostick, 115 L. Ed. 2d 389, 111 S. Ct. 2382, 2386 (1991). The inquiry is thus an objective one. The objective circumstances here do not justify the finding of a seizure. Mr. Agostini was approached by a single officer on a sidewalk and in daylight. The officer did not display any weapons, but simply asked if he could speak to the defendant. There is no evidence of coercive gestures or speech on the part of the officer. As found in cases such as Bostick, United States v. Maragh, 282 U.S. App. D.C. 256, 894 F.2d 415 (D.C. Cir. 1990), United States v. Baskin, 280 U.S. App. D.C. 366, 886 F.2d 383 (D.C. Cir. 1989), and United States v. Lloyd, 276 U.S. App. D.C. 118, 868 F.2d 447 (D.C. Cir. 1989), the objective situation presented here does not establish a seizure.
Second, defendant contends that his statement was obtained unlawfully. This argument must also be rejected. The unrefuted evidence showed that Mr. Agostini's spontaneous statement to Detective Hairston was not made during a "custodial interrogation" or its "functional equivalent." Rhode Island v. Innis, 446 U.S. 291, 301, 303, 64 L. Ed. 2d 297, 100 S. Ct. 1682 (1980). Moreover, the defendant had been advised of his rights under Miranda v. Arizona, 384 U.S. 436, 16 L. Ed. 2d 694, 86 S. Ct. 1602 (1966), when he made the statement. Nor has defendant provided any basis for concluding that the statement was made involuntarily. The statement was volunteered by Mr. Agostini without any threats, promises, or other coercion on the part of Detective Hairston. See Colorado v. Connelly, 479 U.S. 157, 167, 93 L. Ed. 2d 473, 107 S. Ct. 515 (1986).
Defendant's final argument is the most difficult. He contends that he did not freely and voluntarily consent to the search of his tote bag. Unlike the issue of whether a "seizure" occurred, the matter of voluntary consent vel non turns on a subjective inquiry, namely, whether the defendant himself actually consented to a search and did so voluntarily. United States v. Hall, 297 U.S. App. D.C. 102, 969 F.2d 1102, 1106 & n.5 (D.C. Cir. 1992).
When the defendant handed his bag to Detective Hairston there was implicit consent to search it. There could be no other reason for Hairston to ask for it, or for the defendant to hand it over.
However, the government has the burden of proving by a preponderance of the evidence that consent was voluntary in the sense that it was "free from any aspect of official coercion." Schneckloth v. Bustamonte, 412 U.S. 218, 229, 36 L. Ed. 2d 854, 93 S. Ct. 2041 (1973). Bustamonte thus imposes upon the government the burden of assuring the absence of coercion. In addition, the government must show that this defendant, not some hypothetical reasonable person, voluntarily consented. Hall, 969 F.2d at 1106.
Here the government has proved the absence of most of the indicia of coercion cited in other cases. There was only one interviewer and no threatening back-ups in view. Compare United States v. Maragh, 756 F. Supp. 18, 23 (D.D.C. 1991). There is no evidence of any weapons display, or threatening language or tone. The questioning occurred on a sidewalk during daylight hours. The freedom of movement afforded Mr. Agostini by the interviewer is evidenced by his initial acquiescence in Agostini's going to the trash can to throw away his ticket. While Detective Hairston did not warn the defendant of his right to refuse the search, the cases require no such warning as a predicate to an otherwise valid consent to a search.
Mr. Agostini claims that, because he did not understand Hairston's English, and because in Puerto Rico he was accustomed to obeying police orders, he mistook Hairston's request for an "order."
The limits to Agostini's understanding of English do not alter the government's demonstration that there was no coercion. Moreover, his claim that the police in Puerto Rico had taught him to obey their orders did not survive cross-examination. When pressed, traffic stops were the only Puerto Rican police "orders" that he could recall. Indeed, it is judicially noticeable that Puerto Rico is not a Latin American dictatorship, and Puerto Rican police tactics are governed by the same Fourth Amendment that obtains in the District of Columbia. Defendant's "poetic license" in describing his prior experience with the police confirms this fact-finder's impression, gained from observation of Mr. Agostini's demeanor and manner of response as well as the fact that he has lived, worked, shopped, and traveled for five years on the United States mainland, that Agostini can speak and understand English much better than he appeared to do in Court or in the presence of the defense witnesses who testified on his behalf.
Weighing together the consent implicit in the handing-over of the bag, the likelihood that Mr. Agostini understood enough English to know that Hairston was requesting, but not ordering, an opportunity to search the bag, along with the government evidence of the absence of coercion, I find that it is more likely than not likely that the defendant freely and voluntarily consented to the search of his bag which revealed the incriminating contraband.
* * * *
For the foregoing reasons, it is this 6th day of April, 1993, hereby
ORDERED: that defendant's motions to suppress tangible evidence and statements should be, and are hereby, DENIED.
Louis F. Oberdorfer
UNITED STATES DISTRICT JUDGE