Riviera v. State
| Decision Date | 17 March 1989 |
| Docket Number | No. A89A0327,A89A0327 |
| Citation | 380 S.E.2d 353,190 Ga.App. 823 |
| Parties | RIVIERA v. The STATE. |
| Court | Georgia Court of Appeals |
J.M. Raffauf, for appellant.
Robert E. Wilson, Dist. Atty., Robert M. Coker, Fran Shoenthal, Asst. Dist. Attys., for appellee.
Defendant was convicted of trafficking in cocaine. He appeals, contending the trial court erred in ruling that an incriminating statement was made voluntarily and that the cocaine was seized pursuant to a valid consent search.
On October 16, 1987, DeKalb County police officers went to an apartment occupied by defendant to execute a search warrant. Arriving at 7:45 p.m., the police found defendant, his wife and two children outside. The police identified themselves and accompanied defendant and his family inside the apartment.
Defendant's wife was introduced as Rosa Sarmentos. Rosa, who spoke broken English, acted as the translator for defendant, who appeared to understand some English but spoke Spanish exclusively.
Defendant sat next to his wife on a living room sofa as the police officers searched the apartment. Unbeknownst to defendant and his family, one of the police officers, Officer Woods, was fluent in Spanish.
Woods heard defendant tell his wife in Spanish that she was to say she knew nothing. The officer also heard defendant make references in Spanish to "the stuff." Moreover, Woods heard defendant praying as the officers continued their search.
Defendant's wife asked Officer Woods in English why the police were searching the apartment. When the officer replied in English that they were looking for cocaine defendant said he did not know what cocaine was. Defendant's seven-year-old child dissented, stating in Spanish: "You know, the stuff you put in your nose."
When Officer Woods asked if the family owned any cars, she was told they owned a car and a van, but the car was at a friend's house. Asked if the police could have permission to look in the van, defendant's wife produced a key. The van was searched by a police officer at that time, but nothing was found.
The telephone rang and Officer Woods answered it. A voice on the other end asked for someone named Martha. In Spanish, defendant told his wife to tell the officer that Martha was an old girl friend.
Thereafter, Officer Woods looked in defendant's wife's purse and came across two valid Florida driver's licenses. A picture of defendant's wife was on each one. Although the pictures were the same, the names on the licenses were different. One license bore the name "Rosa Sarmentos"; the other--"Martha Hill." Questioned about the discrepancy, defendant's wife burst into tears, exclaiming that she was in the United States illegally.
Officer Woods told defendant's wife in English that she could be taken to jail for giving a false name. At that point, defendant stood up and said he would show the cocaine to the police if they did not take his wife and kids to jail. The police agreed and defendant led them to the van. Officer Woods stayed behind.
After a short period of time, Officer Woods went outside and saw defendant and the other police officers near the van. At that point, defendant still had not shown the officers the cocaine. Officer Woods approached defendant and told him that she spoke Spanish. Hearing that, defendant showed the officers a toy which was in the van. Inside the toy the officers found a white powder subsequently identified as cocaine.
Defendant was led back into the apartment, placed under arrest and advised in Spanish of his Miranda rights. See Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694. After he indicated that he understood his rights, defendant made an incriminating statement in Spanish which Officer Woods translated and transcribed in English. Defendant began making the statement at 10:15 p.m., he finished it at 10:55 p.m. Thereafter, defendant was taken to jail. At that time, he was given a Spanish version of his Miranda rights to read. After reading that document, defendant signed a waiver of his Miranda rights. The time was 11:30 p.m. Held:
1. Defendant contends that his statement that he would show the police the cocaine and the subsequent statement which was translated and transcribed by Officer Woods were inadmissible in evidence. In this regard, he argues that he was not given a Miranda (Miranda v. Arizona, 384 U.S. 436, 444, 86 S.Ct. 1602, 1612, supra) warning before making either statement. We disagree.
Berkemer v. McCarty, 468 U.S. 420, 440, 104 S.Ct. 3138, 82 L.Ed.2d 317. Short of that point, Miranda warnings need not be given. Wilburn v. State, 230 Ga. 675, 679(2), 198 S.E.2d 857. As it is said: "For Miranda to apply a person must be taken into custody or otherwise deprived of his freedom of action in some significant way." Lobdell v. State, 256 Ga. 769, 773(6), 353 S.E.2d 799.
In the case sub judice, defendant had not yet been arrested when he stated he would show the police where the cocaine was hidden--he was simply being detained pending the execution of the search warrant. See OCGA § 17-5-28 which provides that an officer executing a search warrant may reasonably "detain" any person in the place being searched to protect himself or to prevent the disposal or concealment of items described in the search warrant. Compare Orozco v. Texas, 394 U.S. 324, 89 S.Ct. 1095, 22 L.Ed.2d 311, in which a murder suspect's Fifth Amendment rights were violated when he was questioned in his bedroom by police and was "under arrest" as soon as he gave his name. It follows, in the case sub judice, that it was not incumbent upon the police to advise defendant of his Miranda rights before he made the statement that he would show the police the whereabouts of the cocaine. See generally Humphrey v. State, 174 Ga.App. 165, 166(2), 329 S.E.2d 306.
With regard to the incriminating statement which was translated and transcribed by Officer Woods, the evidence is clear (and the trial court found) that after he was arrested defendant was orally given his Miranda rights in Spanish, that he indicated he understood those rights, and that that Miranda warning preceded the statement made by defendant. The mere fact that defendant signed a waiver of his Miranda rights subsequently (after he was taken to jail) did not invalidate the prior oral warning. It cannot be said, therefore, that defendant was not advised of his Miranda rights before making the statement which Officer Woods translated and transcribed.
Defendant also argues that the statements were not made voluntarily, having been induced by the threat that defendant's wife could...
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