Appeal from the Superior Court of the District of Columbia. (Hon. Reggie B. Walton, Trial Judge).
Before Ferren,* Schwelb, and King, Associate Judges. Opinion for the Court by Associate Judge King. Concurring opinion by Associate Judge Ferren. Dissenting opinion by Associate Judge Schwelb.
The opinion of the court was delivered by: King
KING, Associate Judge: Appellant challenges the denial of his motion to suppress evidence that was obtained as a result of what he claims was an illegal seizure and a subsequent warrantless, nonconsensual search. The principal issue presented is whether consent to search, once given, can be withdrawn by an act or comment that falls short of an unequivocal expression of withdrawal of consent. We hold that it cannot, and since the other grounds asserted by appellant in his challenge to the trial court's denial of his motion to suppress are without merit, we affirm.
Burton entered a conditional plea of guilty *fn1 to a single count of unlawful possession with intent to distribute a controlled substance, to wit, cocaine. *fn2 Prior to entering the guilty plea, appellant had moved to suppress the cocaine on the ground that it had been obtained from him in violation of the Fourth Amendment. At the hearing on the motion, the government presented the following facts.
On October 30, 1991, at approximately 5:00 a.m., Detectives Kimerly Oxendine, Ronnie Hairston, and two other members of the Metropolitan Police Force, Drug Interdiction Unit, boarded a bus at the Greyhound Bus Station located in Northeast Washington, D.C., intending to interview the passengers. The detectives were dressed in plainclothes, and none displayed a weapon. Although the bus had just arrived from New York City, a location known to be a major source for illegal drugs, the officers had no specific information that anyone on that bus possessed drugs. Oxendine interviewed one passenger and then approached appellant, who was seated in the window seat in the third row from the rear on the driver's side of the bus. At the time, appellant was twenty-three years old and resided in Richmond, Virginia.
Oxendine identified herself as a police officer, displayed her "identification folder," and asked appellant if she could speak to him. The detective testified that as she spoke to appellant, she was standing in front of the row of seats directly ahead of appellant, so as not to block his path to the aisle; Hairston had previously situated himself in a seat one or two rows behind appellant, and the other two detectives were at the front of the bus. Thus, none of the officers was in the aisle near appellant's seat. Appellant agreed to speak to Oxendine, and after she requested permission to inspect his ticket he gave it to her. She observed that appellant was traveling from New ark, New Jersey to Richmond, Virginia and then returned the ticket to appellant. The detective also asked appellant to point out his luggage, which he identified on the rack above his head. Oxendine explained to appellant that she was a member of the Drug Interdiction Unit, and she then inquired whether he was carrying any drugs or guns. Appellant denied carrying either, and he consented to Oxendine's request to search both his luggage and his person. Thereafter, Oxendine searched the luggage and, finding nothing of an incriminating nature, directed Hairston, a male officer, to search appellant.
Hairston then approached Burton, identified himself as a police officer, and informed appellant he was going to conduct a search. Hairston noticed a bulge in the left inside pocket of appellant's jacket, and just as the detective "started to search Mr. Burton, grabbed his jacket and he looked to the -- towards the window. He also put his hand into the inner left outer coat that he was wearing." It appeared to Oxendine that appellant, as he turned toward the window, was attempting to extract something from the pocket and hide it between the seat and the side of the bus. Hairston told appellant to remove his hand from the jacket, appellant complied without saying anything, and Hairston reached into the pocket and removed a package wrapped in grey duct tape. The package was later determined to contain powdered cocaine; another package, containing powdered cocaine and a rock of cocaine, was then recovered from appellant.
Burton's own testimony contradicted the government's evidence on four separate points. First, appellant testified that Oxendine was "standing over him" in the aisle next to where he was seated, and that he would have come into contact with her had he attempted to leave his seat. Second, he claimed Oxendine requested permission to inspect both his ticket and driver's license and that she never returned either of them. *fn3 Third, appellant maintained that he refused to consent to the search of his luggage and person. Lastly, Burton testified that Hairston threatened him before beginning the pat-down, advising appellant that "if you don't cooperate, we're going to whip your a-s-s on this bus." *fn4
The trial court credited the testimony of the detectives and in a written order found that:
the defendant's movement of his body away from Detective Hairston and the placing of his hand inside his coat could have been interpreted in several ways. As Detective Oxendine testified, she thought the defendant was either trying to hide something or trying to discard something. On the other hand, Detective Hairston thought the defendant might be reaching for a weapon. . . . The defendant testified that he was indicating his desire not to be searched. The court concludes that it was objectively reasonable for the detectives to have drawn all of these impressions from the defendant's actions.
Having voluntarily given unlimited consent for the police officers to search him, the defendant created an atmosphere which caused the detectives to believe that they had been given authority to conduct the search to its completion. While this court has no doubt that the defendant had the right to terminate the search before it was completed, the court also concludes that the defendant could only do so if his words and or actions were unequivocal.
(emphasis added) (footnote omitted). Thus, the trial court ruled that appellant had voluntarily consented to the search and had not unequivocally withdrawn his consent during the search. On appeal, appellant contends the evidence should have been suppressed as the fruit of an illegal seizure of his person. He next contends that the subsequent search was otherwise tainted because it was nonconsensual, any consent he gave was involuntary, and, even if consent was given, he withdrew it during the search.
Burton first contends that the officers conduct amounted to an illegal seizure of his person without probable cause and, therefore, the evidence obtained following the seizure should have been Burton maintains that a seizure occurred because of the "coercive" nature of the encounter, emphasizing that Oxendine was situated only a few feet away from him, Hairston was seated behind him, and two other officers blocked the exit of the bus.
In re J.M., 619 A.2d 497 (D.C. 1992) (en banc), we were faced with similar circumstances involving an encounter with a juvenile by Metropolitan Police detectives on an interstate bus. We held, despite the fact that the detective stood next to J.M. during the interview and search, that "the police conduct was not so intimidating that a reasonable person would have felt incapable of declining the officers' requests or otherwise terminating the encounter." Id. at 502. In contrast to In re J.M., in testimony credited by the trial court, Oxendine stated that had appellant attempted to terminate the conversation, he could have gotten out of his seat and walked down the aisle in either direction since she was standing in front of the seat directly ahead of appellant "so that wasn't blocking his path to get out of the seat." A fortiori, if there was no seizure in In re J.M., there could be no seizure here. *fn6
Moreover, in the totality of the circumstances, which included the fact that the detectives were dressed in plain-clothes, their weapons were concealed, and Oxendine addressed appellant in a polite, conversational tone of voice, requesting permission to speak with appellant rather than demanding it, we conclude that the officers' presence did not rise to the level of a "threatening presence." See United States v. Mendenhall, 446 U.S. 544, 553, 64 L. Ed. 2d 497, 100 S. Ct. 1870 (1979). Although appellant was not informed that he had a right to terminate the interview, whether or not he was so informed is not dispositive on the issue of whether there was a seizure. See id. at 555. *fn7 We hold, therefore, that there was evidence in the record to support the Conclusion that appellant was not seized prior to the search of his person. See In re J.M., supra, 619 A.2d at 500 (this court reviews the determination of a seizure vel non as a question of law) (citation omitted).
Having determined that Burton was not seized does not end our inquiry. Warrantless searches are per se unreasonable, subject "to a few specifically established and well-delineated exceptions." Katz v. United States, 389 U.S. 347, 357, 19 L. Ed. 2d 576, 88 S. Ct. 507 (1967). "One of the specifically established exceptions to the requirements of both a warrant and probable cause is a search that is conducted pursuant to consent." Schneckloth v. Bustamonte, 412 U.S. 218, 219, 36 L. Ed. 2d 854, 93 S. Ct. 2041 (1972) (citations omitted). *fn8 Appellant contends, however, that: (1) he did not consent to the search; (2) any consent that he did give was involuntary; and (3) if he did consent, he withdrew that consent prior to the time Hairston seized the cocaine.
On the question of whether appellant consented to be searched, the trial court credited the testimony of the police officers, rejected appellant's testimony that he did not con sent and that Hairston threatened him, and concluded that appellant consented to the search. "Because this determination is essentially factual, we are bound to uphold the trial court's finding that search was consensual" as that finding is supported by the record. Kelly, (supra) note 8, 580 A.2d at 1288 (citation and internal quotation omitted).
The Supreme Court has held that the government is not required to establish that a defendant knew that he or she had a right to withhold consent in order to uphold a finding that a consent to search was voluntary. See, e.g., Schneckloth, supra, 412 U.S. at 248-49. Rather, the government must establish in the totality of the circumstances *fn9 that consent was, in fact, freely given. Id. at 222. While the government's burden falls short of establishing a knowing and intelligent waiver of the right not to consent to a search, "to approve such searches without the most careful scrutiny would sanction the possibility of official coercion." Id. at 229. Thus, account must be taken of subtly coercive police questions, as well as the possibly vulnerable subjective state of the person who consents." Id.
We conclude that the trial court had a sufficient basis for finding that consent was voluntarily given. Burton testified essentially that he was aware he was not obligated to acquiesce in the detective's request that he allow the search. In addition, although the encounter occurred at an early hour of the morning, there was no custodial detention or physical coercion by Oxendine and, Hairston, only a few brief questions; the request for consent and the subsequent searches were closely related in time; appellant acknowledged that Oxendine addressed him in a polite, conversational tone of voice; and there was no evidence whatsoever that appellant suffered from any intellectual deficiency or that appellant's age affected his capacity to consent. See Schneckloth, supra, 412 U.S. at 226; see also (supra) note 9. Although appellant testified that Hairston threatened him, the trial court did not credit that testimony, finding it to be inconsistent with appellant's other testimony. Thus, after carefully considering all the ...