US v. Gaviria

• Decision Date: 18 October 1991
• Docket Number: Crim. No. 91-060-P.
• Citation: 775 F. Supp. 495
• Parties: UNITED STATES of America v. Carlos A. GAVIRIA.
• Court: U.S. District Court — District of Rhode Island

775 F. Supp. 495

UNITED STATES of America v. Carlos A. GAVIRIA.

Crim. No. 91-060-P.

United States District Court, D. Rhode Island.

October 18, 1991.

Zachariah Chafee, Asst. U.S. Atty., Providence, R.I., for petitioner.

Joseph Bevilacqua, Providence, R.I., for respondent.

MEMORANDUM AND ORDER

PETTINE, Senior District Judge.

Petitioner Carlos Gaviria filed a Motion to Suppress Physical Evidence seized by Rhode Island State Police Detectives in connection with this case. For the reasons stated below, petitioner's motion is granted.

I

On June 11, 1991, two plain clothes Rhode Island State Police Detectives, relying on a tip from a confidential informant, waited at the Bonanza Bus Terminal for the arrival of a late afternoon bus from New York City. Specifically, the detectives were looking for a Colombian male in a white shirt, who — according to the informant — would be carrying a kilo of cocaine in a white plastic shopping bag.

No one fitting the informant's description exited the bus which arrived at approximately 3:00 P.M. The detectives left the bus terminal, returning prior to the arrival of the next bus en route from New York. This time, a third detective, Thomas Underhill, accompanied them. At approximately 5:00 P.M., the three detectives witnessed an Hispanic male in a white shirt, carrying a white plastic shopping bag, stepping off the New York bus. The detectives followed this individual, defendant Carlos Gaviria, to the taxi stand outside the terminal. There they approached him, identified themselves as narcotics officers, and attempted to question him. The defendant indicated that he did not speak English, and the language problem central to this motion ensued.

Only one detective, Thomas Underhill, had any familiarity with the Spanish language. Detective Underhill is admittedly not fluent in Spanish. Suppression Hearing Transcript, Sept. 12, 1991, at 9-10. The government and the defendant disagree about the extent of mutual understanding that existed between Detective Underhill and Mr. Gaviria. By all accounts, however, the discussion took place partly in Spanish and partly in English, and at times both Detective Underhill and the defendant had difficulty interpreting what the other was attempting to say.¹

After asking a series of questions regarding the defendant's point of departure, place of residence, age, and the like, Detective Underhill asked to see the contents of the white plastic shopping bag. The government contends that Mr. Gaviria assented to a search of the bag; the defendant alleges that he did not consent to the search.²

The bag was found to contain a quantity of cocaine, at which point Mr. Gaviria was arrested.

II

Under the Fourth Amendment of the United States Constitution, searches conducted without a warrant are presumptively unreasonable.³United States v. Cruz Jimenez, 894 F.2d 1, 6 (1st Cir.1990) (citing Coolidge v. New Hampshire, 403 U.S. 443, 91 S.Ct. 2022, 29 L.Ed.2d 564 (1971), overruled on other grounds by Washington v. Chrisman, 455 U.S. 1, 102 S.Ct. 812, 70 L.Ed.2d 778 (1982)).

However, the evidence acquired by a warrantless search can survive a motion to suppress if the government demonstrates that the search fell within one of several recognized exceptions to the warrant requirement. United States v. Cruz Jimenez, supra, at 6 (citing United States v. Jeffers, 342 U.S. 48, 72 S.Ct. 93, 96 L.Ed. 59 (1951), overruled on other grounds by Rakas v. Illinois, 439 U.S. 128, 99 S.Ct. 421, 58 L.Ed.2d 387 (1978) (holding that a search incident to a valid arrest and conducted pursuant to valid consent is excepted from the warrant requirement)). Probable cause must also exist in conjunction with the recognized exception. United States v. Cresta, 825 F.2d 538, 553 (1st Cir.1987), cert. denied, Impemba v. United States, 486 U.S. 1042, 108 S.Ct. 2033, 100 L.Ed.2d 618 (1988) (citing Katz v. United States, 389 U.S. 347, 88 S.Ct. 507, 19 L.Ed.2d 576 (1967) ("warrantless searches and seizures are constitutionally impermissible unless supported by probable cause and justified by either exigent circumstances or another recognized exception to the Fourth Amendment warrant requirement")). Consent, freely and knowingly given, is one such recognized exception to the warrant requirement. Schneckloth v. Bustamonte, 412 U.S. 218, 219, 93 S.Ct. 2041, 2043, 36 L.Ed.2d 854 (1973).

III

The general rule prohibiting unreasonable searches and seizures may be waived if the individual in question consents to the search or seizure. See, Rodriguez Perez, supra, at 1024 (citing Schneckloth, supra, 412 U.S. at 219, 93 S.Ct. at 2043-44). However, where "the government attempts to justify a warrantless search on the basis of consent, the Fourth and Fourteenth Amendment clearly require that the consent be freely given and is not the result of duress or coercion, either express or implied." United States v. Twomey, 884 F.2d 46, 50 (1st Cir.1989), cert. denied, ___ U.S. ___, 110 S.Ct. 2592, 110 L.Ed.2d 273 (1990). The District Court's determination should be the result of demanding scrutiny of the circumstances. Id.

In determining whether or not consent to a search was freely given, the Court must look at the "totality of the circumstances" surrounding the procurement of consent. See Twomey, supra, at 51; United States v. Miller, 589 F.2d 1117, 1130 (1st Cir. 1978), cert. denied, 440 U.S. 958, 99 S.Ct. 1499, 59 L.Ed.2d 771 (1979) (citing Schneckloth, supra, 412 U.S. at 246-47, 93 S.Ct. at 2057-58).

The government has the burden of proving by a preponderance of the evidence that the search was made pursuant to a voluntary consent. United States v. Matlock, 415 U.S. 164, 177, 94 S.Ct. 988, 996, 39 L.Ed.2d 242 (1974). One element of the state's proof of voluntary consent to a search must be that the consent was an "intentional relinquishment or abandonment of a known right." Gorman v. United States, 380 F.2d 158, 163 (1st Cir.1967) (quoting Johnson v. Zerbst, 304 U.S. 458, 464, 58 S.Ct. 1019, 1023, 82 L.Ed. 1461 (1937)); Leavitt v. Howard, 332 F.Supp. 845, 853 (D.R.I.1971), rev'd on other grounds, 462 F.2d 992 (1st Cir.1972), cert. denied, 409 U.S. 884, 93 S.Ct. 175, 34 L.Ed.2d 140 (1972). However, it is not necessary for the police to inform the subject of the search of his right to refuse. Schneckloth, supra, 412 U.S. at 231-32, 93 S.Ct. at 2049-50. "Rather, it is only by analyzing all the circumstances that it can be ascertained whether in fact the search was voluntary or coerced. It is this careful sifting of the unique facts of each case that is evidenced in our prior decisions involving consent searches." Id.

The "totality of the circumstances" test for determining voluntary consent necessitates a highly individualized, fact specific inquiry. In the present case, the most serious challenge to the government's assertion of voluntary consent stems from the fact that the defendant does not speak English. At this juncture, it will be helpful to examine the particular instances in which other federal courts have applied the "totality of the circumstances" test to cases involving potential language barriers.

IV

In United States v. Alvarado, 898 F.2d 987 (5th Cir.1990), a Spanish-speaking defendant moved to suppress evidence found during an alleged consent search of his car. He claimed his consent was not voluntary because of his limited ability to communicate in English. The Fifth Circuit concluded that "in regard to Spanish speaking defendants, where there is sufficient conversation between the suspect and law enforcement officers to demonstrate that the suspect had an adequate understanding of English to fully comprehend the situation, a finding that consent was voluntary may be proper." Id. at 991. However, it must be noted that the defendant in Alvarado signed a written consent form which had been read to him in English.⁴ Id. at 989. The presence of a signed, written consent form serves to significantly bolster the claim of voluntariness of consent, and provides an additional means of assurance that the non-native speaker understands what his consent means. No such consent form was given to Mr. Gaviria before his bag was searched.

The Eighth Circuit was recently faced with a drug possession case in which a Spanish-speaking defendant argued that he had not voluntarily consented to a search of his van. United States v. Cortez, 935 F.2d 135 (8th Cir.1991). The defendant orally consented to the search and signed a consent form written in English AND in Spanish. The fact that the consent form was written in Spanish as well as in English effectively negated any inference that the defendant did not voluntarily consent to the search of his vehicle. The use of a consent form clearly distinguishes Cortez from the instant case.

The Second Circuit had an even more clear-cut set of facts on which to rest its finding of voluntary consent in United States v. Zapata-Tamallo, 833 F.2d 25 (2d Cir.1987). The defendant in Zapata-Tamallo claimed that her consent to a search of her apartment was not voluntary. However, the Drug Enforcement Agent who secured her consent had given her a Spanish-language consent form, which she signed; additionally, he had orally explained her rights to her IN SPANISH. The instant case is thus distinguishable from Zapata-Tamallo not only because of the absence of a Spanish consent form, but also because Detective Underhill simply asked Gaviria if he (Underhill) could look in Gaviria's bag. No one explained Gaviria's rights to him in even the most cursory manner, in Spanish OR in English. Suppression Hearing Transcript, Sept. 12, 1991, at 20.⁵

An equally clear-cut case was United States v. Velasquez, 885 F.2d 1076 (3rd Cir.1989), cert. denied, ___ U.S. ___, 110 S.Ct. 1321, 108 L.Ed.2d 497 (1990). Police officers originally stopped the defendant for speeding. When they asked for her consent to search the car, she replied, "Yes, you can search." Id. at 1082. The conversation...