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09/06/91 J.M.

September 6, 1991

IN RE J.M., APPELLANT


Appeal from the Superior Court of the District of Columbia; Hon. Steffen W. Graae, Trial Judge

Schwelb and Farrell, Associate Judges, and Mack, Senior Judge. Opinion for the court by Associate Judge Schwelb. Dissenting opinion by Associate Judge Farrell.

The opinion of the court was delivered by: Schwelb

Experience should teach us to be most on our guard to protect liberty when the Government's purposes are beneficent. Men born to freedom are naturally alert to repel invasion of their liberty by evil-minded rulers. The greatest dangers to liberty lurk in insidious encroachment by men of zeal, well-meaning but without understanding.

Olmstead v. United States, 277 U.S. 438, 479, 48 S. Ct. 564, 72 L. Ed. 944 (1928) (Brandeis, J., Dissenting).

I

THE CASE

This case concerns a collision between this nation's "war" against the pernicious drug trade and the constitutional rights of a fourteen-year-old boy who was apparently being used by unscrupulous traffickers as a courier. Following a stipulated juvenile bench trial, appellant J.M. was found guilty of possession of cocaine with intent to distribute it, in violation of D.C. Code § 33-541 (a) (1988). On appeal, he contends that the trial Judge committed reversible error when he denied J.M.'s pretrial motion to suppress 110 grams (roughly a quarter of a pound) of crack cocaine. The contraband was strapped to J.M.'s body and recovered by police when they boarded the bus on which J.M. was riding at the Washington, D.C. Greyhound-Trailways bus terminal at 2:30 a.m. on October 31, 1989 to interview and conduct "consent" searches of passengers in order to determine if any of them were carrying illegal drugs. A police detective eventually reached J.M., and, after interrogating him and searching his luggage, patted him down and found the cocaine.

Following an evidentiary hearing, the trial Judge found that J.M. had not been seized within the meaning of the Fourth Amendment and that he had consented to the search and frisk. J.M. contended below, and now maintains on appeal that, under all of the circumstances, he was not free in any realistic sense to refuse to cooperate with the officers or to withhold his consent to the search. The issue is not an easy one, but we agree with J.M.

The procedures in this case reflect a common but controversial new tactic used by police to interdict the traffic in illegal drugs. A number of courts, as well as a three-member minority of the Supreme Court of the United States, have characterized the kind of "consent search" conducted in this case as more consistent with the practices of despotic regimes than with the institutions and traditions of a free nation. See Florida v. Bostick, 111 S. Ct. 2382, 59 U.S.L.W. 4708, 4712, 115 L. Ed. 2d 389 (U.S. June 20, 1991) (Marshall, J., Dissenting), and decisions there cited. Indeed, the Supreme Court itself has intimated that it views such police tactics as less than ideal. *fn1 In United States v. Lewis, 287 U.S. App. D.C. 306, 312, 921 F.2d 1294, 1300 (1990), on the other hand, the court dismissed some of the concerns cited by several courts (and later adopted by the Bostick minority) as "rhetorical flourish" with "no basis in fact or law."

Be that as it may, the likes and dislikes of individual Judges regarding particular police procedures cannot be dispositive of a constitutional issue. The Court held in Bostick that the activities of drug interdiction officers who board buses at scheduled stops, pose incriminating questions to passengers, and request permission to search them do not amount, per se, to Fourth Amendment seizures. The Court directed that each case be evaluated on the basis of the totality of the circumstances to determine whether there has been a seizure and, if not, whether the passenger has freely consented to the search. Bostick, supra, 59 U.S.L.W. at 4711; see also Schneckloth v. Bustamonte, 412 U.S. 218, 227, 93 S. Ct. 2041, 36 L. Ed. 2d 854 (1973).

Applying the "totality of the circumstances" test, informed by what we regard as the correct legal principles, to the evidentiary record in this case, we conclude that the District failed to prove that J.M. voluntarily gave his free and unconstrained consent to the search of his property and person. We reach this Conclusion primarily because J.M. was only fourteen years of age at the time of the encounter, because he was not advised of his right to withhold his consent, and because the surrounding circumstances as described by the police detective who testified for the District (including the cramped space on the bus, the pressures incident to the presence of numerous other passengers, and the occurrence of the encounter at 2:30 a.m.) were such that J.M.'s choice was not free in the practical context of its exercise. Accordingly, we reverse the judgment and remand the case to the trial court with directions to grant J.M.'s pretrial motion to suppress.

II

THE EVIDENCE

The only witnesses at the hearing on the suppression motion were Detective Donald Zattau of the Narcotics Interdiction Unit of the Metropolitan Police Department and appellant J.M. Except with respect to a single point -- whether the detective asked J.M. for permission to frisk him -- there was little, if any, conflict in the testimony. The dispute between the parties relates primarily to the legal consequences of uncontested facts.

Detective Zattau testified that in the early morning hours of October 31, 1989, he and a team of officers from his unit were at the Greyhound-Trailways bus station in Washington, D.C. Their assignment was to interrogate passengers arriving in or passing through Washington, D.C. from New York City and presumably to search them if there was cause or if police secured their consent. At about 2:30 a.m., a bus arrived from New York en route to various points to the south, one of which was Wilmington, North Carolina. After the driver announced a ten-minute rest stop, Zattau and two other officers, *fn2 who were all dressed in civilian clothes, boarded the bus.

Detective Zattau took control of the intercom without first asking the bus driver for authority to do so. He announced that he was a member of a police drug interdiction unit, and that he and his colleagues interviewed passengers arriving from New York because that city was a "source supply of drugs." He explained that other members of the unit were also on the bus at the time.

There were at least fifteen passengers on the bus; J.M. thought there were more than thirty. After questioning several passengers, Detective Zattau approached J.M., who was occupying a window seat approximately three quarters of the way to the rear. Zattau inquired where J.M. had boarded the bus and where he was going, and requested to see J.M.'s ticket. J.M. responded to these questions and showed the detective his ticket, which reflected a trip from New York to Wilmington. Zattau then asked J.M. whether he was carrying drugs or weapons; J.M. replied that he was not. The detective asked if he could search J.M.'s bag; J.M. agreed, but the search revealed nothing.

J.M. undoubtedly hoped, and may well have believed, that his ordeal was now over and that he would escape the encounter without the police discovering the contraband which was concealed on his person, but it was not to be. Detective Zattau testified that he next asked J.M. if he could pat him down. J.M. denied that Zattau ever made such a request, but testified that he raised his arms in response to Zattau's request that he do so. The detective felt a large, hard lump next to J.M.'s rib cage, lifted J.M.'s shirt, and discovered a clear plastic bag containing 110 grams of a rock substance which subsequently proved, upon chemical analysis, to be crack cocaine. J.M. was arrested, and the cocaine never reached Wilmington.

Detective Zattau testified that none of the passengers left the bus while the interrogations were being conducted. He indicated that if any of them had done so, this would have attracted his attention, and he would have attempted to investigate further. He stated that if J.M. had refused to answer any questions, he might have asked him the reason for his refusal, for he had been instructed that there was nothing wrong in asking why. He acknowledged that passengers had no way of knowing what would occur if they refused to permit a search, and that he made no attempt to enlighten them on the subject. On redirect examination, Detective Zattau stated that on past occasions, when a passenger had refused his request to search a bag, this had been the end of the interview.

J.M. testified that he was fourteen years old at the time of the incident and that he had recently begun the ninth grade. No evidence was adduced that he had ever had any prior encounter with the law. J.M. stated, not surprisingly, that he became afraid when the officers boarded the bus. He felt that he could not leave the vehicle because any attempt to depart would have attracted attention to him. He stated that the passageway in the middle of the bus was very narrow, and that one of the officers was standing between J.M.'s location and the only available exit. J.M. also testified that he was afraid that the police would become suspicious if he did not agree to allow the detective to search his bag. He insisted that he raised his hands to facilitate the patdown because he felt he had no choice, and because any non-cooperation on his part would have made the police even more suspicious of him. J.M. admitted that he had told the detective that he had no drugs on his person, and that this statement was not true.

J.M. acknowledged that the detective spoke to him in a polite and conversational tone of voice and did not abuse or threaten him. There was no overt intimidation, and J.M. did not claim that the detective ever drew his weapon. A fair summary of J.M.'s testimony is that he cooperated with Detective Zattau because he apprehended that if he did not do so, the police would have regarded him as someone who had something to hide, and that this would not have been to his advantage. This, indeed, was also the prosecutor's theory, as his cross-examination of J.M. plainly revealed. *fn3

The trial Judge denied J.M.'s motion to suppress the cocaine. He held that the police questioning of J.M. within the close confines of the interior of the bus and the securing of J.M.'s consent to the search did not constitute a seizure within the meaning of the Fourth Amendment. He stated that there was no indication that Detective Zattau had overborne J.M.'s will. The Judge credited Detective Zattau's testimony that he had requested and received J.M.'s permission before patting him down, and further found that the consent was voluntary. "Consistent with his desire to deflect suspicion from himself," the Judge reasoned,

[J.M.] turned to the officer and cooperated and raised his hands and I think hoped against hope that by golly, maybe he won't find it. . . . [J.M.] consented to everything that went right up and down the line. . . . [J.M.'s consent] was part of the pattern of his whole reaction to the situation that was in front of him.

The Judge stated that he thought "the law is clear" that the detective was "not obliged, in fact, to undercut his effort by saying, oh, you don't have to answer any questions, you can walk away from me immediately, you can in fact ignore me and, indeed, I would advise you to do that."

During the course of his decision, the Judge never discussed or even mentioned J.M.'s age or the lack of any evidence of any prior encounter between J.M. and the police. The Judge did recognize that "in these types of encounters . . . there is an inherent authority, obviously, that the officer carries with him when he is conducting this kind of an interview and asking to search a bag." He stated that he knew of no way "to get away from that or avoid it," because "that's the nature of the animal."

After the Judge had denied J.M.'s motion, the parties stipulated that the testimony given at the suppression hearing would be a part of the evidentiary record of the trial. They also stipulated that the 110 grams seized constituted a usable amount of cocaine and that the evidence was consistent with possession for purposes of distribution. The Judge then found J.M. guilty as charged. This appeal followed.

III

LEGAL DISCUSSION

A. The nature of the issues.

The District has not contended, either in the trial court or on appeal, that the police had probable cause to search J.M., or even articulable suspicion to detain him, prior to the discovery of cocaine on his person. Its defense of the trial court's decision must therefore stand or fall on the correctness of the Judge's holding that the search and frisk, as well as the interrogation which preceded them, were consensual in character.

J.M. contests the validity of the Judge's Conclusion on two distinct though related grounds. First, he claims that the police interrogation and activities prior to the frisk amounted to a seizure within the meaning of the Fourth Amendment, in that under all of the circumstances a reasonable person would not have felt free to leave the bus or to decline to respond to police questions. Since the cocaine seized following the frisk was a ...


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