bag, jacket, and his person by saying yes.
Randolph Supplemental Memorandum at 2. Detective Hairston then proceeded to search the bag and jacket and, finding no drugs, went on to search the defendant as he remained seated, beginning with his ankles and legs, moving to his chest, and then patting down his groin area, where the detective testified he felt something hard. As the detective commenced the body search and before he reached the groin, he testified, the defendant asked him if didn't need a search warrant to search his person. To this question, Detective Hairston testified that he replied to the defendant that he did not need a warrant so long as the defendant had given his verbal consent to the search. The detective testified that the defendant said nothing thereafter but appeared nervous when the detective felt the hard object, upon which Detective Hairston asked the defendant to open the front of his trousers. The defendant complied, and Detective Hairston observed that defendant was wearing a jock strap over his underwear. The detective opened the jock strap and saw plastic bags containing a rock-like substance, which later testing confirmed was crack cocaine. Detective Hairston then arrested the defendant. The detective testified that, at no time during his encounter with the defendant did he obstruct the defendant's egress from the bus.
In its decision last summer in Bostick, supra, the Supreme Court reaffirmed that, even when police have no basis for suspecting an individual, they may (1) generally ask questions of him, (2) ask to examine his identification, and (3) request to search his luggage, "so long as the police do not convey a message that compliance with their request is required."
111 S. Ct. at 2386. Bostick reiterated that the Fourth Amendment inquiry to be applied to persons confronted with such questions on public carriers remains the same as that to be applied to a person walking on the street; i.e.,
whether a reasonable person
would have felt free to decline the officers' requests or otherwise terminate the encounter. . . . taking into account all of the circumstances surrounding the encounter . . . . Where the encounter takes place is one factor, but not the only one."
Id. at 2387; see also United States v. Lloyd, 276 App. D.C. 118, 868 F.2d 447, 451 (D.C. Cir. 1989) (to determine whether consent is voluntary, a court must apply a "totality of all the surrounding circumstances" test). Other relevant circumstances have been held to include
the time of day, . . . the officer's tone of voice, and whether the officer displayed a weapon or handcuffs, wore a uniform, touched the individual without permission, threatened or physically intimidated him, or retained his identification or travel ticket.
United States v. Lewis, 921 F.2d 1294, 1297 (D.C. Cir. 1990). Yet another circumstance to be considered, and one found "particularly worth noting" by the Bostick Court, id. at 2385, is whether the officer requesting the search informed the passenger of his right to refuse. Lloyd, supra, 868 F.2d at 451. There appears to be no obligation to so inform the passenger, and the prosecution need not prove that a defendant knew of his right to refuse. See Id.; Schneckloth v. Bustamonte, 412 U.S. 218, 226-27, 249, 36 L. Ed. 2d 854 , 93 S. Ct. 2041 (1973).
The facts of the instant case go well beyond those of Bostick, in which the Supreme Court restricted itself to merely rejecting a "per se rule" that the practice of "working the buses" is unconstitutional, and reserved decision on whether the facts at issue there ("Two officers walked up to Bostick on the bus, asked him a few questions, and asked if they could search his bags") constituted an unlawful seizure. Id. at 2385, 2388. Here, the police sought the defendant's permission to search his belongings and his person. Such a request and consent search on a public bus is permissible under the law of this Circuit. See Lewis, supra, 921 F.2d at 1296.
However, once consent is given and a voluntary search is commenced, it appears that this consent may be withdrawn or limited at any time prior to the completion of the search. 3 Wayne R. LaFave, Search and Seizure Section 8.1(c), pp. 172-72 (2d ed. 1987); see, United States v. Brady, 269 App. D.C. 18, 842 F.2d 1313, 1315 & n.6 (D.C. Cir. 1988); United States v. Joseph, 118, 122, 126-27 (D.C. Cir. 1989). A determination of whether consent was withdrawn or limited in this case by virtue of defendant's question to Detective Hairston, "Don't you need a search warrant to search my person," must be made in view of a "totality of all the surrounding circumstances," just as must a determination of whether, by stating "yes" to the detective's broad-ranging request, the defendant ever really consented to a search of his groin on a public bus at all.
The Court finds a number of circumstances in this case to be problematical. First, Detective Hairston did not advise the defendant of his right to refuse to consent to a search. Second, as indicated, the complex nature of Detective Hairston's broad-ranging request for permission to search, juxtaposed against defendant's simple affirmative response, raises a question whether the two had a meeting of the minds that the search would include the defendant's private parts. See United States v. Blake, 888 F.2d 795 (11th Cir. 1989) (holding that a reasonable person would not understand that giving consent to a police request to search his or her "person" in an airport terminal would entail an officer touching his or her genitals). Third, also as already indicated, the defendant's inquiry to the detective as the body search commenced about the need for a search warrant deepens the Court's suspicion that no unqualified consent occurred. Fourth, Detective Hairston's response to the search warrant inquiry that no warrant was needed once consent had been given could, in the Court's opinion, lead a reasonable, innocent-minded person to believe that he had already foregone any right to withdraw or limit consent; the fact that the defendant said nothing further to the officer therefore is not significant. Finally, notwithstanding Detective Hairston's assertion that he never blocked the defendant's egress from the bus, he testified quite clearly that he searched the defendant's legs, chest and groin while the defendant was sitting a cramped bus seat; the Court's view is that a reasonable, innocent-minded person would not feel free to terminate such an encounter.
The Court finds that the above circumstances, considered together, go beyond the Supreme Court's admonition in Bostick that police conducting random searches on public carriers "not convey a message that compliance with their request is required." 111 S. Ct. at 2386. Accordingly, the Court must grant defendant's motion to suppress the evidence seized from the defendant.
Judge George H. Revercomb