Unpublished Disposition, 912 F.2d 471 (9th Cir. 1989)

MEMORANDUM^*

Ramon Pena-Rodriguez appeals his conviction under 8 U.S.C. § 1326 for re-entering the United States after having been deported. Pena-Rodriguez argues that the court erred in admitting the testimony of Officer Herman Koppisch and Officer Steven Bowerman regarding inculpatory statements made by Pena-Rodriguez. He also argues that his initial indictment should been dismissed with prejudice, rather than without prejudice, under the Speedy Trial Act, 18 U.S.C. § 3161, et seq. We affirm.

* Tacoma Police Officer Koppisch testified that during the first nine months of 1988 he was a foot-patrol officer in the downtown area. During that time period the police had noted a problem with young Hispanic males in this area dealing in narcotics and causing problems in taverns and bars. For this reason, police officers attempted to identify "who was who" in the area by name, date of birth, and a bit of personal history so that they would know something about the people who frequented the area.

Officer Koppisch testified that on at least one occasion he approached Pena-Rodriguez on the street and asked him in casual conversation for his name, date of birth, and where he was from, to which Pena-Rodriguez replied that he was from Mexico. It was, Officer Koppisch testified, a "very freely open" conversation in Spanish, ending with the officer thanking Pena-Rodriguez and telling him to "stay out of trouble" or "see you around."

Pena-Rodriguez argues that Officer Koppisch's conduct constituted an unlawful stop and that, therefore, the testimony should be suppressed. We disagree.

As the Supreme Court has held:

law enforcement officers do not violate the Fourth Amendment by merely approaching an individual on the street or in another public place, by asking him if he is willing to answer some questions, by putting questions to him if the person is willing to listen, or by offering in evidence in a criminal prosecution his voluntary answers to such questions. Nor would the fact that the officer identifies himself as a police officer, without more, convert the encounter into a seizure requiring some level of objective justification.

Florida v. Royer, 460 U.S. 491, 497 (1983); see also United States v. Espinosa, 827 F.2d 604, 608 (9th Cir. 1987), cert. denied, 108 S. Ct. 1243 (1988). Officer Koppisch's conduct did not constitute a stop at all; therefore, reasonable suspicion was not required. Pena-Rodriguez's constitutional rights were not infringed by the conversation or the admission of his statement into evidence.

II

Officer Bowerman testified that he participated in Pena-Rodriguez's arrest on October 20, 1988. He testified that at approximately 4:00 pm he and his partner were passing a street corner when his partner noticed an open, partially consumed container of beer under a bench on which three men--who were then walking away--had just been sitting. The two officers approached the men "because of the appearance of the liquor violation."

Officer Bowerman further testified that, because he and his partner were concerned for their safety, they frisked the three men for weapons. He testified that their concern was based on the nature of the neighborhood and their past experience in dealing with people in that area "with large knives and guns."

The officers found a weapon concealed on Pena-Rodriguez. Consequently, he was placed under arrest and taken to the police station. Officer Bowerman testified that upon arriving at the police station he presented Pena-Rodriguez with a rights form printed in both Spanish and English, instructed him to read the Spanish part, watched while he read it, and then asked him if he understood it. Officer Bowerman testified that Pena-Rodriguez indicated that he understood it; however, he refused Officer Bowerman's request that he sign the form.

Officer Bowerman testified that at that point he asked Pena-Rodriguez for general background information, including where he was from. Pena-Rodriguez told officer Bowerman that he was from the state of Michoacan in Mexico. Pena-Rodriguez then stated that he knew he would be deported, but that he would be back in a week. When asked to repeat what he had just said, he refused to speak further.

Pena-Rodriguez argues that both the stop and frisk were unlawful and, further, that his statement is inadmissible as he was interrogated in violation of his rights under the fifth amendment. Again, we disagree.

The officers observed an open, partially consumed container of alcohol--substantial evidence that a liquor violation had occurred--underneath a bench, upon which officer Bowerman's partner had observed the three men sitting. The officers thus had reasonable suspicion sufficient to justify stopping the men to question them with regard to the suspected violation.

Additionally, given the nature of the neighborhood and the officers' past experience with armed people in the area, the officers were justified in frisking the men based on a concern for their own safety. The cases cited by Pena-Rodriguez are distinguishable. In Ybarra v. Illinois, the government was unable to articulate any basis whatsoever for suspecting that the defendant was armed and dangerous. 444 U.S. 85, 93 (1979). Similarly, in United States v. Thomas, we found that the officer "only suggests that he frisked Thomas because he was a 'pretty big [guy].' An officer cannot simply frisk all 'pretty big' guys without more specific objective reasons why the suspect posed a risk to the safety of the officer." 863 F.2d 622, 629 (9th Cir. 1988).

Further, the record supports the district court's determination that Pena-Rodriguez voluntarily waived his fifth amendment rights. He had read his rights in Spanish and indicated that he understood them. Although he refused to sign the form, there is no evidence that he wished to remain silent or to speak to an attorney. In fact, he apparently answered Officer Bowerman's questions without reluctance, until asked to repeat a particular statement at which point he exercised his right to refuse to answer any more questions.

Again, the cases cited by Pena-Rodriguez are distinguishable. For instance, in United States v. Wallace we noted that " [i]n the face of repeated questioning by Agent Brehm, Wallace maintained her silence for several minutes and, perhaps, as many as ten minutes." 848 F.2d 1464, 1475 (9th Cir. 1988). Similarly, in United States v. Heldt, we observed " [a]dditionally, there was testimony that Heldt, in addition to refusing to sign, indicated that he did not wish to answer questions, but that the officer exhorted him to do so anyway." 745 F.2d 1275, 1277 (9th Cir. 1984).

Here, Pena-Rodriguez exhibited no other indication of a desire to remain silent. With regard to his Miranda rights, " [h]e said that he understood [them] but he didn't want to sign the form." While this may have created some ambiguity as to his desire to exercise his rights, the fact that he continued to converse with Officer Bowerman without the officer exhorting him to do so indicates that he did not wish to remain silent. In fact, Pena-Rodriguez's conduct in refusing to answer questions beyond a certain point indicates that he understood his rights and was willing to exercise them.

III

Finally, Pena-Rodriguez argues that the district court erred in dismissing his initial indictment without prejudice under the Speedy Trial Act, 18 U.S.C. § 3161, et seq. We review the district court's decision to dismiss the indictment without prejudice for an abuse of discretion. United States v. Taylor, 108 S. Ct. 2413, 2419 (1988).

Pena-Rodriguez was arrested in this matter on December 22, 1988. Initially, he was placed in custody on a hold by the INS. A complaint was filed on December 27, 1988, charging him with a criminal violation of 8 U.S.C. § 1326. He was indicted on this charge on January 25, 1989. The district court found, however, that he had been held for more than thirty days between the date of his arrest and his indictment in violation of 18 U.S.C. § 3161(b); the court therefore dismissed the January indictment.

In determining whether to dismiss a case with or without prejudice, a court must consider, among other things, each of the following factors:

(a) the seriousness of the offense;

(b) the facts and circumstances of the case which led to the dismissal; and

(c) the impact of a reprosecution on the administration of the Speedy Trial Act and on the administration of justice.

See 18 U.S.C. § 3162(a) (2). Here, the district court held that

[t]hat defendant's alleged offense is too serious to overlook considering his offense and INS record; the dismissal is based on a delay of only five days in filing a charge and is somewhat technical and did not, in fact, prejudice the defendant or seriously impact a reprosecution or the administration of justice.

We agree. Therefore, the verdict against Pena-Rodriguez is

AFFIRMED.