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February 5, 1992



The opinion of the court was delivered by: JUNE L. GREEN


The Court of Appeals remanded this action for proceedings consistent with Florida v. Bostick, 115 L. Ed. 2d 389, 111 S. Ct. 2382 (1991) and U.S. v. Lewis, 287 App. D.C. 306, 921 F.2d 1294 (D.D.Cir. 1990). This Court held a de novo hearing on the defendant's motion to suppress evidence and statements on February 3, 1992. At the hearing, the Court heard testimony from Detectives K. Oxendine and R. Hairston, of the Metropolitan Police Department, on behalf of the government, and from the defendant. The Court again granted the defendant's motion. This Memorandum and Order memorialize the Court's ruling and explain further the Court's reasoning. The facts are set forth fully in the Court's July 23, 1990 Memorandum.

 The issue before the Court is plain: whether the defendant, Brenda Alston, consented voluntarily to the search of her property. The Court finds she did not.

 At the hearing, the defendant testified that after witnessing Officer Oxendine and other male officers interview and search several other bus passengers, she, herself, was confronted by Detective Oxendine. She testified that Detective Oxendine placed herself between the defendant's seat and the aisle, blocking the defendant's exit into the aisle. She testified that before identifying herself as a police officer, Detective Oxendine requested some identification from her and asked several questions about her travel plans. According to the defendant's testimony, Detective Oxendine then asked if she could search her handbag. The defendant stated that she felt compelled to allow the officer to search her bag. She testified that she was "pretty sure" that Detective Oxendine was a police officer and she had been raised never to say "no" to an officer of the law. Ms. Alston further testified that she thought she might have to go to jail if she didn't allow the officer to search her handbag. *fn1"

 The defendant, it appears to the Court, is a rather unsophisticated lady who has spent most of her life working as a domestic in a small, country hamlet in South Carolina. *fn2" Although she testified that she knows of her rights as a citizen, she also testified her "momma" had raised her that she must always answer "yes" and cooperate with a police officer. According to Detective Oxendine's own testimony, at no time was Ms. Alston ever informed that she had a right not to answer the detective's questions. Thus, the Court is convinced that the defendant believed she had no option other than consenting to the interview and search, and was not informed of another option.

 While these factors are very influential in the Court's ruling, they are not determinative under the law. Schneckloth v. Bustamonte, 412 U.S. 218, 227, 36 L. Ed. 2d 854, 93 S. Ct. 2041 (1973) ("While the state of the accused's mind, and the failure of the police to advise the accused of his rights, [are] certainly factors to be evaluated in assessing the 'voluntariness' of an accused's responses, they [are] not in and of themselves determinative."). But the Court finds that these factors when combined with the coercive nature of the circumstances surrounding the interview and search, lead to the conclusion that the defendant's consent was involuntary.

 Both detectives and the defendant testified that at least two passengers were interviewed and searched by the officers prior to the interview with the defendant. All three witnesses testified that the luggage of one passenger was searched at the front of the bus, and then removed for additional search, while the defendant was watching. The defendant had no reason to know the interviews or searches were consensual as they were conducted out of her earshot.

 To conduct the "consensual" interview of the defendant, Detective Oxendine placed herself in front of Ms. Alston's seat, blocking her only exit. Detective Hairston *fn3" placed himself a hand's-grab away in the opposite aisle seat.

 This chain of events might have left little impression on another individual, well-versed in his or her rights. But for the defendant, already predisposed by upbringing and lack of sophistication to submit to a show of authority, these circumstances overpowered her will to resist.

 The Supreme Court declared in Schneckloth, "in examining all the surrounding circumstances to determine if in fact the consent to search was coerced, account must be taken of subtly coercive police questions, as well as the possibly vulnerable subjective state of the person who consents." Id. at 229. The police officers' tactics of interviewing and searching a number of the bus's occupants in plain view of fellow passengers and of hemming a passenger in her seat during the course of a "consensual" interview, were, at the very least, subtly coercive. The Court is convinced that for Ms. Alston, given her state of mind, this coercion forced a consent which would not have been given otherwise.



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