The search was not unreasonable considering all of the circumstances. See Myrick v. State, 177 So.2d 845 (Fla.App.1st, 1965); Garcia v. State, 186 So.2d 556 (Fla.App. 3rd, 1966); James v. State, 223 So.2d 52 (Fla.App.4th, 1969). Defendant questions the admissibility of an alleged confession in that it was obtained from Defendant after he had been transported from Thomasville, Georgia to Tallahassee, Florida without formal extradition.
The present case thus differs from such cases as Restrepo v. State, 438 So.2d 76 (Fla. 3d DCA 1983), Acosta v. State, 519 So.2d 658 (Fla. 1st DCA), review denied, 529 So.2d 695 (Fla. 1988), and Palacios v. State, 434 So.2d 1031 (Fla. 1st DCA 1983), in which there was a failure of communication. The defendant urges that Garcia v. State, 186 So.2d 556 (Fla. 3d DCA 1966) compels affirmance. The police officer in that case informed defendant that his home could not be searched without his consent.
In the case at bar, there is no evidence that Trooper Stallworth either explained to the appellant that he had a right to refuse a search, or that he made any attempt to bring an interpreter to the scene. If Stallworth had done the latter, the greater burden imposed upon the government to show voluntary consent in the case of an illiterate or foreigner who does not readily understand English, see Kovach v. United States, 53 F.2d 639 (6th Cir. 1931); United States v. Wai Lau, 215 F. Supp. 684 (S.D.N.Y. 1963), aff'd., 329 F.2d 310 (2d Cir. 1964), cert. denied, 379 U.S. 856, 85 S.Ct. 108, 13 L.Ed.2d 59 (1964), may have been overcome by an interpreter who adequately informed the defendant that the search could not be undertaken without his consent. See Garcia v. State, 186 So.2d 556 (Fla. 3d DCA 1966). An interpreter in fact assisted defendant during his examination at trial.
Where, as in this case, the Spanish-speaking defendant did not speak English and was questioned by a police officer whose knowledge of Spanish was limited, and the phrase used by the officer to obtain the search could be interpreted, as admitted by the officer himself, as a command to submit to lawful authority, the state failed to show by clear and convincing evidence that defendant freely and voluntarily consented to the search of his suitcase. Cf. Garcia v. State, 186 So.2d 556 (Fla. 3d DCA 1966) (where police officer spoke both Spanish and English, and adequately informed defendant that the search of his home could not be undertaken without his consent, search was upheld). In light of all the circumstances set forth above, the trial court should have rejected the officer's conclusive opinion that the defendant understood he had an absolute right to refuse the search.
This burden may be overcome where an officer who speaks the same language as the defendant adequately informs the defendant that the search cannot be undertaken without his consent. See Garcia v. State, 186 So.2d 556 (Fla. 3d DCA 1966). We find the facts of the instant case analogous to United States v. Albarado, 495 F.2d 799 (2d Cir. 1974).
The son's consent was further ineffective because, under the circumstances of this case, it cannot be said to have been voluntarily given. In order for a consent to search to be effective, it must be freely and voluntarily given, Jackson v. State, 132 So.2d 596 (Fla. 1961); Garcia v. State, 186 So.2d 556 (Fla.App.3rd 1966), and the evidence that it was so given must be clear and convincing. Sagonias v. State, 89 So.2d 252 (Fla. 1956); Samuels v. State, 318 So.2d 190 (Fla.App.2d 1975).