Appeal from the Superior Court of the District of Columbia; (Hon. Bruce D. Beaudin, Trial Judge)
Before Farrell and Wagner, Associate Judges, and Newman, Senior Judge. Opinion for the court by Senior Judge Newman. Dissenting opinion by Associate Judge Wagner.
The opinion of the court was delivered by: Newman
NEWMAN, Senior Judge: James Oliver ("Oliver") was charged with possession of cocaine with intent to distribute; after a bench trial, he was convicted. Oliver challenges the trial court's denial of his pre-trial motion to suppress evidence (cocaine) seized pursuant to a search which he contends was unconstitutional. In light of his previous encounter at Union Station with the same group of drug interdiction detectives, Oliver argues, his consent to the body search in this case was involuntary and thus invalid. On the particular facts of this case, we agree and therefore reverse the conviction.
On July 12, 1989, Metropolitan Police Department Detectives Donald Zattau, Edward Hanson, Edward Curley, and John Centrella, and Sergeant John Brennan were assigned to a drug interdiction team at Union Station. The detectives wore plain clothes. They were armed, but their weapons and handcuffs were concealed beneath their jackets. Oliver arrived at Union Station by train from New York. He carried no luggage, walked with his hands in his pockets, and was observed looking off to his right. *fn1 Detective Zattau approached Oliver, showed Oliver his badge, and asked to talk to Oliver. Detective Hanson positioned himself to Oliver's right, about fifteen feet away, and Detective Centrella stood to Oliver's rear at about the same distance. At this time, Sergeant Brennan and Detective Curley were interviewing another individual. Detective Zattau proceeded to interview Oliver. *fn2 When asked if he was carrying weapons, drugs, or other contraband, Oliver replied that he was not. Based on Detective Zattau's testimony, the trial court found that Oliver consented to a pat-down search. *fn3 During the pat-down, Detective Zattau felt a "hard, lumpy substance in [Oliver's] crotch area." When asked what it was, Oliver replied that it was part of a colostomy bag. Oliver raised up his shirt and revealed an opening near his naval, from which a rubber tube extended downward. *fn4 Detective Zattau asked to see the colostomy bag, and suggested that they continue the search in a men's room nearby. Oliver walked into the men's room first, followed by Zattau and two other police officers, who stood behind Oliver by the door. Once inside the men's room, Oliver pulled the tube upwards. Zattau asked again about the bulge in the crotch area. When Oliver started to loosen the drawstring waist of his pants, Zattau said, "do you mind if I do that?" *fn5 Oliver dropped his hands to his sides. Zattau pulled Oliver's pants away from his body, and observed a jock strap worn over boxer shorts. Zattau reached into the jock strap and pulled out a clear powder-filled plastic bag later determined to contain 125 grams of cocaine. Oliver was arrested.
At the suppression hearing, in response to counsel's questions regarding whether Oliver felt free to leave the detectives, Oliver testified that he was not free to leave from the moment of Detective Zattau's initial approach, because that detective had stopped Oliver on a previous occasion. According to Oliver, one to two months before the instant encounter leading to his conviction, he and a companion were approached by Detective Zattau at the taxi stand in front of Union Station. The questioning was substantially similar to the encounter of July 12, 1989. Detective Zattau asked to search the bag Oliver was carrying. When Oliver refused, Zattau replied that Oliver could leave, but that his luggage must remain. Oliver agreed to the search of the bag. No drugs were found. Oliver began to walk away, but Zattau said he had to search Oliver's person also or have the dog sniff him. Oliver's companion, impatient to leave, encouraged Oliver to allow the search. No drugs were found. Detective Hanson also testified at the suppression hearing, and corroborated much of Oliver's account of the previous encounter, except that he stated the questioning and search of Oliver had been done by Detective Curley.
The trial court credited Oliver's testimony regarding the previous encounter. Of key importance to our decision, the Judge made two findings. First, he found that Oliver had in fact believed (mistakenly but understandably) that Detective Zattau was the same person who had questioned and searched him on both occasions. *fn6 Second, the court found that the prior search of Oliver's person had been conducted against his will. Both findings are relevant in determining whether Oliver freely consented to the body search on July 12, 1989. Despite the previous encounter, the trial court found that on the present occasion Oliver voluntarily consented to the pat-down and the more intrusive search of his body that followed.
The instant case turns on the issue of consent, as the trial court properly found. A seizure does not occur simply because police officers approach an individual and ask a few questions. Florida v. Bostick, U.S. 111 S. Ct. 2382, 2386 (1991); Florida v. Royer, 460 U.S. 491, 497, 75 L. Ed. 2d 229, 103 S. Ct. 1319 (1983) (plurality opinion); Richardson v. United States, 520 A.2d 692, 696 (D.C.), cert. denied, 484 U.S. 917, 98 L. Ed. 2d 224, 108 S. Ct. 267 (1987); United States v. Barnes, 496 A.2d 1040, 1044-45 (D.C. 1985). This is so even where the officers lack articulable suspicion that the interviewee has committed a crime. Bostick, supra, 111 S. Ct. at 2386; Immigration & Naturalization Service v. Delgado, 466 U.S. 210, 216-17, 80 L. Ed. 2d 247, 104 S. Ct. 1758 (1984). The test is whether a reasonable person, innocent of any crime, in light of the objective surrounding circumstances, would have believed that he was "at liberty to ignore the police presence and go about his business." Bostick, supra, 111 S. Ct. at 2387; Michigan v. Chesternut, 486 U.S. 567, 573, 574, 100 L. Ed. 2d 565, 108 S. Ct. 1975 (1988); United States v. Mendenhall, 446 U.S. 544, 554, 64 L. Ed. 2d 497, 100 S. Ct. 1870 (1980) (opinion of Stewart, J.), reh'g denied, 448 U.S. 908, 65 L. Ed. 2d 1138, 100 S. Ct. 3051 (1980). Fourth Amendment protections against unreasonable seizures are not implicated until the encounter loses its consensual nature. Bostick, supra, 111 S. Ct. at 2386; Kelly v. United States, 580 A.2d 1282, 1286 (D.C. 1990).
Recent cases in this jurisdiction support our Conclusion that Oliver was not seized at the moment he was approached by the drug interdiction detectives and asked questions. See, e.g., Kelly, supra, 580 A.2d at 1288; Winston, supra, note 1, 282 U.S. App. D.C. at 101, 892 F.2d at 117. He involved himself in a consensual Discussion, from which he was free to extricate himself at any moment. Kelly, supra, 580 A.2d at 1288. Present in Oliver's situation were factors which negate intimidation or coercion. *fn7
The drug interdiction team members were dressed in plain clothes, not uniforms. Their weapons and handcuffs were concealed beneath jackets; at no time during the questioning or search did the detectives brandish a weapon. The detectives spoke in conversational tones and conducted themselves in a polite manner. Though there were four detectives present, they did not appear to crowd Oliver. Detective Zattau testified that the other detectives stood fifteen feet away from Oliver and did not block his path while Zattau conducted the interview. Thus, there was no Fourth Amendment intrusion on appellant's liberty or privacy before the police laid hands on his person.
The government concedes, however, as it must, that when the police patted Oliver down, they "searched" him for purposes of the Fourth Amendment, and that that intrusion (as well as the subsequent more invasive search) requires justification. Specifically, a search conducted without a warrant is per se unreasonable unless it falls within one of the few established exceptions. Katz v. United States, 389 U.S. 347, 357, 19 L. Ed. 2d 576, 88 S. Ct. 507 (1967). Voluntary consent is such an exception. Schneckloth v. Bustamonte, 412 U.S. 218, 219, 36 L. Ed. 2d 854, 93 S. Ct. 2041 (1973). The voluntariness of consent is determined by careful scrutiny of all circumstances surrounding the search. Id. at 226. Whether the suspect acts in his own best interest is not relevant to the determination of voluntary consent. Mendenhall, supra, 446 U.S. at 559. Consent may be freely given even if the officers requesting the search fail to advise a suspect of his right to withhold consent. Id. at 558. "Knowledge of the right to refuse is not a prerequisite of a voluntary consent," Schneckloth, supra, 412 U.S. at 234, although it may be "highly relevant." Mendenhall, supra, 446 U.S. at 559. The government bears the burden of proving voluntary consent by a preponderance of the evidence. Bumper v. North Carolina, 391 U.S. 543, 548, 20 L. Ed. 2d 797, 88 S. Ct. 1788 (1968); United States v. Matlock, 415 U.S. 164, 178 n.14 (1974). Mere submission to a show of authority does not satisfy the government's burden of proof. Royer, supra, 460 U.S. at 497.
A finding of voluntariness is essentially factual. On appeal our review is limited: a trial court's finding that a search is consensual is upheld unless such a finding is clearly erroneous. United States v. Alexander, 428 A.2d 42, 49-50 (D.C. 1981); Childress v. United States, 381 A.2d 614, 618 (D.C. 1977). Recent cases decided by the United States Court of Appeals for the District of Columbia Circuit have upheld consent to searches of bags, and to body searches conducted by drug interdiction teams at Union Station and the local Greyhound bus terminal. However, several of those opinions specifically noted the absence of factors or circumstances considered coercive. See, e.g., Lloyd, supra, note 1, 276 U.S. App. D.C. at 122, 868 F.2d at 451; Maragh, supra, note 7, 282 U.S. App. D.C. at 258, 894 F.2d at 417.
In determining from the totality of the circumstances whether consent to a search is voluntary, "account must be taken of subtly coercive police questions, as well as the possibly vulnerable subjective state of the person who consents." Schneckloth, supra, 412 U.S. at 229. There is a critical fact established in the instant case that sets it apart from other Union Station cases: Oliver's recent encounter with the same group of detectives and his belief, which the trial court credited as reasonable, that the same detective had questioned and searched him on both occasions. The previous encounter began as a series of substantially similar questions culminating in a search of both Oliver's bag and of his person. On that occasion, Oliver initially refused to consent to the search of his bag. The detective made it clear that although Oliver was free to leave, his bag must remain with the detectives. After having searched Oliver's bag, which contained only articles of clothing, the detective demanded either a pat-down or a dog sniff of Oliver's person. The trial court specifically found that Oliver's consent to these prior searches was involuntary, and thus that the searches were unconstitutional.
In these unique circumstances, we cannot accept the trial court's finding that Oliver consented voluntarily to the present search. It is true, as the Judge stated, that the fact that Oliver "objected at one time to having a search of his person and his luggage doesn't necessarily mean that he has to act consistently with that if he's approached under the same conditions" (emphasis added). But of necessity the message conveyed to him on the previous occasion would bear importantly on "the nature of subjective understanding" of his rights. Schneckloth, supra, 412 U.S. at 230. On this record, we can find nothing to offset the effect of the experience Oliver claimed (and was found by the court) to have had of encountering the same detectives earlier in circumstances where they essentially disregarded his refusal to consent to a search. The interval between the searches was relatively brief, and the trial Judge did not dispute appellant's contention that the prior coercive search had remained vivid in his memory. Thus, applying the standard of review appropriate to factual findings, we are "left with the definite and firm conviction that a mistake has been committed." United States v. United States Gypsum Co., 333 U.S. 364, 395, 92 L. Ed. 746, 68 S. Ct. 525 (1948).
Because the pat-down of appellant was neither consented to nor (as the government concedes) supported by articulable suspicion, the discovery of the hard lumpy substance in his crotch area was the product of an illegal search. We therefore need not consider the government's argument that the discovery of that evidence provided reason ...