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12/30/92 J.M.

December 30, 1992

IN RE: J.M., APPELLANT


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

Before Rogers, Chief Judge, Ferren, Terry, Steadman, Schwelb, Farrell, Wagner, King, and Sullivan, Associate Judges, and Mack, Senior Judge. Opinion for the court by Associate Judge Farrell. Opinion by Chief Judge Rogers, with whom Senior Judge Mack joins, Dissenting but Concurring in the remand. Opinion by Associate Judge Sullivan, with whom Associate Judge Wagner joins, Concurring in part and Dissenting in part. Opinion by Senior Judge Mack Dissenting but Concurring in the remand.

The opinion of the court was delivered by: Farrell

ON REHEARING EN BANC

FARRELL, Associate Judge: On reconsideration by the court en banc, we have decided to remand this case for explicit findings by the trial Judge with respect to the key factual issue presented, namely, the bearing of appellant's age -- fourteen at the time of his arrest -- upon the voluntariness of his consent to the search of his person.

I.

Appellant was adjudicated delinquent based upon a finding that he had possessed cocaine with intent to distribute it (D.C. Code § 33-541 (a) (1988)). Prior to trial, he moved to suppress the cocaine on grounds that it had been seized from him in violation of the Fourth Amendment. At the hearing on the motion, the facts established were essentially as follows. On October 31, 1989, Detective Donald Zattau and a team of Metropolitan Police officers were at the Greyhound-Trailways bus station in Northeast Washington, D.C. Their assignment was to question, and presumably search if they had cause or obtained consent, passengers arriving in or passing through Washington from New York City. At about 2:30 a.m. a bus arrived from New York en route to Wilmington, North Carolina. After the driver announced a ten-minute rest stop, Detective Zattau and two other officers boarded the bus dressed in civilian attire. Using the bus speaker system, Zattau announced their identity and purpose, explaining that they were part of a drug interdiction group that interviewed passengers arriving from New York because it was a "source supply of drugs," and in the past they had found that drugs were transported by bus passengers. After questioning other passengers, Zattau approached J.M., who was seated three-quarters of the way to the rear next to a window.

The detective introduced himself and, in a conversational voice, asked J.M.'s point of origin and destination and if he could see his bus ticket; he also asked if J.M. had heard the announcement over the speaker system, to which the youth replied that he had and understood it. Zattau asked if J.M. was carrying drugs or weapons, and when J.M. replied no, the detective asked if he could search the bag J.M. was carrying with him. J.M. consented, and the search revealed nothing. Zattau then asked if J.M. had drugs or weapons on his person; when J.M. said no, the officer asked if he would mind if he patted him down. In response J.M. turned toward the officer and raised his arms while still seated. Zattau patted him down and felt a hard object on his right side next to his rib cage. He lifted the shirt and discovered a plastic bag containing crack cocaine taped to J.M.'s body. J.M. was arrested.

J.M. testified that he was fourteen years old at the time of his arrest and fifteen at the time of the trial one and a half months later. He lived in Brooklyn, New York, and attended ninth grade. He acknowledged that he had consented to the search of his bag because he knew it contained nothing illegal and feared that if he did not consent, the police would become suspicious and investigate. He denied, however, that he had given Zattau permission to frisk him, asserting that the officer "just started patting me down." He made no effort to stop the frisk because if he had done so, the officers "would have got more suspicious at me."

In justifying the search, the government did not claim that Detective Zattau had reason to suspect appellant of a crime, but instead argued that there had been no seizure of his person within the Fourth Amendment since he had freely consented to the patdown. Appellant, by contrast, argued that he had been seized without articulable suspicion because a reasonable person in his shoes would not have felt free to reject the officers' request. He argued, in addition, that under the totality of the circumstances his consent to the search was involuntary because he was fourteen years old at the time and "was traveling alone[,] and certainly under those circumstances, alone, black, barely a teenaged youth, would feel pressure when the police came up to him."

The trial Judge denied the motion to suppress. He found, first, that J.M. had not been seized within the meaning of the Fourth Amendment merely because he was approached and questioned, and his consent to a search obtained, in the close confines of a bus interior, when there was no indication that the actions of Detective Zattau had overborne appellant's will. The Judge further credited Zattau's testimony that he had asked for and received J.M.'s permission before patting him down, and 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 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.

With respect to the failure to advise J.M. that he could withhold his consent, 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." Significantly (in light of our Discussion later), while concluding that J.M. had consented in order "to deflect suspicion from himself," the Judge did not link this Conclusion to any express findings about J.M.'s maturity or sophistication for his age, as shown by his conduct at the time of the search or his testimony and demeanor at the hearing. The Judge did recognize that, even in the case of adults, "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," but found that this authority had not coerced J.M. into consenting against his will.

II.

We confront in this case two conceptually distinct yet, in practice, often overlapping issues. First, at the time Detective Zattau asked for and received appellant's consent to a pat-down search, did the totality of the officer's conduct amount to a seizure under the Fourth Amendment? Second, assuming appellant was not seized, was his consent to the pat-down voluntary so as to make the search reasonable under the Fourth Amendment? Florida v. Jimeno, 114 L. Ed. 2d 297, 111 S. Ct. 1801, 1803 (1991). There will be instances, exemplified by this case and Florida v. Bostick, 111 S. Ct. 2382 (1991), where the overlap of these issues -- and the congruence between the tests governing their resolution -- is nearly complete. Nevertheless, we agree with the United States Court of Appeals for the District of Columbia Circuit that, "although there is overlap in these tests, they are not identical," United States v. Maragh, 282 U.S. App. D.C. 256, 261, 894 F.2d 415, 420 (emphasis by court), cert. denied, 111 S. Ct. 214 (1990). *fn1 The "crucial test" for determining whether a person has been seized "is whether, taking into account all of the circumstances surrounding the encounter, the police conduct would 'have communicated to a reasonable person that he was not at liberty to ignore the police presence and go about his business.'" Bostick, 111 S. Ct. at 2387 (emphasis added) (quoting California v. Hodari D., 113 L. Ed. 2d 690,111 S. Ct. 1547, 1551 (1991)). By contrast, the issue of whether a person freely consented to a search "focuses on the particular individual rather than on a hypothetical reasonable person." United States v. Lewis, 287 U.S. App. D.C. 306, 313, 921 F.2d 1294, 1301 (1990). In that inquiry, all of the circumstances must be considered including both the nature of the police conduct and "the possibly vulnerable subjective state of the person who consents," Schneckloth v. Bustamonte, 412 U.S. 218, 229, 36 L. Ed. 2d 854, 93 S. Ct. 2041 (1973), as "the very object of the inquiry . . . the nature of a person's subjective understanding." Id. at 230.

Given the overlapping but distinct nature of these two inquiries, this court has consistently applied a different standard of review in resolving them. We have reviewed the determination of seizure as a question of law de novo, Guadalupe v. United States, 585 A.2d 1348, 1352 n.7 (D.C. 1991), although "defer to the trial Judge's findings of fact unless clearly erroneous." Id. But in light of the Supreme Court's repeated emphasis that the voluntariness of a consent to search is "a question of fact to be determined from all the circumstances," Schneckloth, 412 U.S. at 248-49; id. at 227, we have considered ourselves "bound to uphold the trial court's finding that a search was consensual unless such a finding is clearly erroneous." Kelly v. United States, 580 A.2d 1282, 1288 (D.C. 1990) (quoting Childress v. United States, 381 A.2d 614, 618 (D.C. 1977)); see also D.C. Code § 17-305 (a) (1989).

We adhere to this distinction today. No party before us, including the two amid, has urged a change in the standard of review concerning the seizure issue, and we are not persuaded there is reason to depart from our present standard. See United States v. Maragh, 282 U.S. App. D.C. at 258, 894 F.2d at 417 ("seizure" inquiry a question of law); but see id. at 262-63, 894 F.2d at 421-22 (Mikva, J., Dissenting) (question whether police seized person "essentially factual" and should be reviewed under clearly erroneous standard). On the other hand, amicus the Public Defender Service urges that, in light of two recent Supreme Court decisions, Miller v. Fenton, 474 U.S. 104, 88 L. Ed. 2d 405, 106 S. Ct. 445 (1985), and Florida v. Jimeno, supra, the issue of consent under the Fourth Amendment henceforth must be viewed as a question of law to be reviewed by the appellate court de novo (with deference to the trial court as to secondary for subsidiary issues of fact). Though this argument is made forcefully, we reject it. *fn2 Until the Supreme Court signals plainly that the voluntariness of consent for Fourth Amendment purposes is no longer an issue of fact to be reviewed under the clearly erroneous standard, we shall continue to ally ourselves with every federal court of appeals in applying that standard of review. *fn3

III.

We first conclude that J.M. was not seized when Detective Zattau asked him questions and asked permission to search his bag and then pat him down. In reaching that Conclusion, we do not on this record consider the fact that J.M. was fourteen years old and hence possibly vulnerable to coercion in a way an adult would not have been. *fn4 We cannot do so because the Supreme Court has taught that the test for whether a person has been seized "is designed to assess the coercive effect of police conduct" (emphasis added), and that while that test

is flexible enough to be applied to the whole range of police conduct in an equally broad range of settings, it calls for consistent application from one police encounter to the next, regardless of the particular individual's response to the actions of the police. The test's objective standard -- looking to the reasonable man's interpretation of the conduct in question -- allows the police to determine in advance whether the conduct contemplated will implicate the Fourth Amendment. 3 W. LaFAVE, SEARCH AND SEIZURE § 9.2 (h), pp. 407-408 (2d ed. 1987 and Supp. 1988). This "reasonable person" standard also ensures that the scope of Fourth Amendment protection does not vary with the state of mind of the particular individual being approached.

Michigan v. Chesternut, 486 U.S. 567, 573, 574, 100 L. Ed. 2d 565, 108 S. Ct. 1975 (1988) (emphases added). As any susceptibility to coercion J.M. possessed by virtue of his age would relate to "the state of mind of the particular individual being approached," we must defer consideration of it to the separate issue, part IV, (infra), of whether he voluntarily consented to the pat-down of his person. *fn5

In Kelly v. United States, supra, we stated that

factors which might indicate a seizure would include, for example, the threatening presence of several officers, the display of a weapon by an officer, some physical touching of the person of the citizen, or the use of language or tone of voice ...


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