powder later identified as cocaine, and the officers arrested the defendants. On June 14, 1988, a grand jury indicted defendants for possession of cocaine with intent to distribute, 21 U.S.C. § 841(a).
Defendant now seeks to suppress the physical evidence seized during this warrantless search and any statements made in conjunction with the search and arrest.
Because the defendant voluntarily consented to the search of the bags, that search was lawful.
A search conducted pursuant to consent has long been recognized as an exception to the requirements of both a warrant and probable cause. See Schneckloth v. Bustamonte, 412 U.S. 218, 219, 36 L. Ed. 2d 854, 93 S. Ct. 2041 (1973). Even under defendant's scenario, consent to search the bags was freely and voluntarily given. Defendant made no effort to stop Percoco from handing the bags to the officers. Furthermore, he never affirmatively asserted his right to refuse the officers' request to search the bags. At most, if one believes his testimony, defendant simply asked the officers if they had a warrant, rather than demanding that they show him one before they opened the bags. In the face of Percoco's clear willingness to provide the bags to the officers, defendant's behavior did not manifest a desire to deny his consent to the search.
Furthermore, none of the factors traditionally associated with involuntary consents -- the youth, lack of education or lack of intelligence of the accused, the length of detention, the repeated and prolonged nature of the questioning, or the use of physical punishment -- were present in this case. See id. at 226. Certainly the officers did not lie about the existence of a warrant, as was the case in Bumper v. North Carolina, 391 U.S. 543, 20 L. Ed. 2d 797, 88 S. Ct. 1788 (1968). Although the officers did not inform defendant that he had the right not to consent, a failure affirmatively to inform a defendant of the right not to consent is not coercive per se. See United States v. Brady, 269 U.S. App. D.C. 18, 842 F.2d 1313, 1315 n.5 (D.C. Cir. 1988).
A suspect who has been detained for further investigation retains the right to refuse to consent to a search of his property. See United States v. Sanchez, 635 F.2d 47, 60-61 (2d Cir. 1980). Whether this right has been voluntarily relinquished must be determined based on the "totality of all the circumstances." Schneckloth, supra, 412 U.S. at 227. The situation in this case was not so inherently coercive that defendant's decision to consent was not freely made. Specifically, the officers' treatment of Percoco -- refusing to close the door to the compartment and forcing her to dress elsewhere -- was not so coercive as to render the consent involuntary. In Sanchez, the defendant was handcuffed and taken by three police officers in a police car, with three police officers following in another car, to his apartment. Five of the officers escorted Sanchez to the apartment. When they reached the door, one of the officers, with Sanchez's keys in his hand, asked for permission to search the apartment. Sanchez replied, "'Go ahead and look. You won't find anything.'" Sanchez, supra, 635 F.2d at 61. In spite of the presence of five police officers, one of whom held the keys to the suspect's apartment, and the fact that the suspect was handcuffed, the Second Circuit remanded the case to the District Court for further findings of fact to determine whether the consent to search the apartment had been given voluntarily, thus implying that consent could be voluntary even in such a coercive atmosphere.
The situation in this case was certainly far less coercive than that found in Sanchez. There were only two officers. Although the Amtrak roomette was quite small, that alone does not make the atmosphere of the encounter inherently coercive. See Brady, supra, 842 F.2d at 1315 n.5. There was no testimony that the officers were threatening or abusive. There was no show of force. Convicted on at least two other occasions of drug-related felonies, defendant was familiar with arrest procedures and his legal rights. Even though manifestly aware of the significance of a warrant, he never asserted a right to put on his clothes and leave, or to say that he would not let them search his bags. Considering all the circumstances, his consent to the search was knowing and voluntary.
Accordingly, it is this 12th day of August, 1988, hereby
ORDERED: that defendant Silk's motion to suppress statements and tangible evidence should be, and is hereby, DENIED.