In re J.M. , 619 A.2d 497 ( 1992 )

MACK, Senior Judge,

dissenting, but concurring in the order of remand:

As a matter of law, I would have concluded that J.M. was seized when cornered by drug interdiction officers on board the bus. Moreover, even accepting the facts as developed at trial, I could not have concluded that J.M. freely consented to an intrusive body search. With the issue of consent still open, however, I want to go¹ on record as agreeing with my colleagues that, on remand, the trial court must consider J.M.’s youth. Moreover, to speak the “unspeakable,” ¹ the trial court should also consider the fact that J.M. was a fourteen year old black youth who had no previous involvement with the criminal justice system and who had not been advised that he could walk away or refuse to answer.

In our preoccupation with standards of review with respect to “two conceptually distinct yet, in practice, often overlapping issues,”² i.e., whether there has been seizure and/or consent for Fourth Amendment purposes, we must not lose sight of the fact that, regardless of the applicable standards, judges at both the trial and appellate levels must rest any decisions on the “totality of [factual] circumstances.”³ This is true whether those circumstances are objective only,⁴ or both objective and subjective.⁵ In my view, J.M. was seized when cornered by police in the early morning hours of October 31, 1989. I cannot find that a reasonable person, even an innocent person,⁶ (in the circumstances in which J.M. found himself) would feel “free to decline the officers’ request or otherwise terminate the encounter” in the physically confining interior of an interstate bus commandeered by armed drug interdiction officers at 2:00 a.m. for the purpose of conducting interviews during a rest stop.⁷ See Florida v. Bostick, supra note 1.

II.

As to the consent issue, I read both Miller v. Fenton, 474 U.S. 104, 106 S.Ct. 445, 88 L.Ed.2d 405 (1985) and Florida v. Jimeno, — U.S. -, 111 S.Ct. 1801, 114 L.Ed.2d 297 (1991), to hold that consent is a question of law for the appellate court, deferring to the trial court’s findings on secondary or subsidiary issues (of fact). I do not belabor the point because I do not rely upon what I perceive here to be an impermissible seizure to question the validity of any subsequent consent to search.⁸ The coercive nature of the setting, coupled with other facts established by trial testimony, leads me to conclude that the trial court’s finding of J.M.’s free and voluntary consent was at least clearly deficient, and at most clearly erroneous. See Kelly v. United States, 580 A.2d 1282 (D.C.1990).

For the average law-abiding citizen, the idea of having police officers conduct a “pat down” body search in public is a disconcerting one. It is safe to surmise, and the Corporation Counsel so argued, that this thought would be even more disconcerting to a person with cocaine strapped to his body. For distinctly different but equally compelling reasons, this court should review with “the most careful scrutiny” all the surrounding circumstances attendant to a finding of consent, especially when the search cannot be justified by probable cause or articulable suspicion. See Schneckloth v. Bustamonte, supra, 412 U.S. at 229, 248, 93 S.Ct. at 2048, 2058; see also United States v. Blake, 888 F.2d 795 (11th Cir.1989).

The conclusion that J.M. freely consented because he did not want to make the searching officer suspicious, culled from a scenario generated by the prosecutor during J.M.’s cross-examination and reiterated in the trial court’s reasoning, fails to comport with the reality of human experience, with the record in this case, and with the law of consent as I see it. In my view, this finding cannot be sustained.

When the government seeks to rely upon consent to justify the lawfulness of a search, the government bears the burden of proving that the consent was, in fact, freely and voluntarily given. Bumper v. North Carolina, 391 U.S. 543, 548, 88 S.Ct. 1788, 1791, 20 L.Ed.2d 797 (1968). Volun-tariness is a question of fact to be determined from the totality of all the circumstances, including the characteristics of the accused, the details of the interrogation, and the failure to advise the accused of his constitutional rights. See Schneckloth, supra, 412 U.S. at 226, 227, 93 S.Ct. at 2047, 2048. Only after a careful sifting through the unique facts and circumstances of each case can such a determination be made. If it appears that the consent was not given voluntarily — that it was coerced, or granted only in submission to a claim of lawful authority — the consent is invalid and therefore the search is unreasonable. Id. at 233, 93 S.Ct. at 2050. Voluntariness traditionally has taken into account, inter alia, such evidence as a suspect’s minimal schooling, low intelligence and lack of effective warnings to a suspect of his rights. Id. at 248, 93 S.Ct. at 2058; see also Florida v. Bostick, supra, — U.S. at -, -, 111 S.Ct. at 2382, 2385 (the fact that the accused had been informed of his right to refuse consent was considered “worth noting”). Moreover, personal characteristics of the accused such as age, sex, race and even widowhood have been worth noting in the assessment of coercion. See Mendenhall, supra, 446 U.S. at 558, 100 S.Ct. at 1879; see also Bumper, supra, 391 U.S. at 546, 88 S.Ct. at 1790.

In the instant case, there was no evidence of verbal or written consent to a body search.⁹ Detective Zattau, a member of the elite “drug interdiction” team described by the trial judge as “well-trained and experienced”,¹⁰ conceded his awareness that consent would be a major legal question arising from his drug interdiction duties. The detective also testified that if a subject refused to permit a search of luggage or submit to a “pat-down,” the officer could go no farther “at that point.” Yet, the detective conceded that he did not share this information with J.M. and the other passengers on the bus. He testified that, after receiving J.M.'s permission to search his luggage and finding no drugs therein, he asked J.M. whether he was carrying any drugs or weapons on his person and J.M. said “no.” More significantly, Detective Zattau testified that when he asked J.M. if he would “mind” a “pat-down,” J.M. did not say anything. J.M. gradually turned his body in the officer’s direction and raised his arms.¹¹ Asked why he raised his hands, J.M. replied “[b]e-cause, you know, I had no other choice but to.” J.M. said that he “was feeling kind of afraid,” that he did not believe that he could walk off the bus, and that he knew the officers were armed even though Zat-tau did not display his gun (as did Zattau’s partner who was then stationed behind J.M.).

It was the government’s cross-examination that broached the subject of J.M.’s “cooperation,” suggesting that J.M. was making efforts to avoid conduct that would make the police “suspicious.” After having tried unsuccessfully to obtain an admission from J.M. that the drugs were taped to a particular location on his body in order to attract less attention, the prosecutor asked J.M.:

[PROSECUTOR]: You had no intention of stopping him from patting you down, did you?

[J.M.]: No, because if I would have tried to, he would have got more suspicious of me.

Whatever J.M. meant by this answer to a series of leading questions, it appears that he was not admitting that he freely consented to the search. Rather, J.M. was explaining why he did not resist an officer who he said was already searching him (his luggage and his person) on a bus where egress was impossible. In this coercive environment, J.M.’s raising of his arms may have been no more than his submission to authority or succumbing to fear of the consequences of refusal. See Mendenhall, supra, 446 U.S. at 559, 100 S.Ct. at 1879; Bumper, supra, 391 U.S. at 548-49, 88 S.Ct. at 1792; United States v. Alexander, 755 F.Supp. 448, 452 (D.D.C.1991).

It is against this backdrop that the oral findings of the trial court must be measured. After rejecting J.M.’s argument as to seizure primarily on the ground that the detective was not overbearing,¹² the court turned to the issue of consent. Beginning with the question of whether Detective Zat-tau had asked J.M. if he could pat him down (a fact J.M denied), the court credited the officer in the context of this case and in the context of his training, suggesting that J.M. might have forgotten or not heard the officer, adding:

Be that as it may, I do credit the detective that he asked to do a pat-down and that [J.M.] consistent with his desire to deflect suspicion from himself turned to the officer and cooperated and raised his hands and I think hoped against hope that by golly, maybe he won’t find it.

The court, further noting that the officer “did find it,” said that it felt “comfortable finding that [J.M.] consented to everything that went right up and down the line.” The court said it believed that J.M. had consented to a pat-down and that it “would be willing to bet” that, if the facts were different, J.M. would have consented. “It was part of the pattern of his whole reaction to the situation that was in front of him.”

One defers to the trial court’s assessment of credibility. For whatever reason, one might “believe,” as the trial court believed, that J.M. consented to an intrusive search of his body. Is this, however, the kind of factual finding of consent to which this court wants to defer for Fourth Amendment purposes? This may well be one of those cases where the inquiries of seizure and consent overlap.¹³ Under any standard of review, I see no voluntary consent on these facts and I would opt for reversal for the reasons stated so eloquently by Judge Schwelb at the division level.¹⁴

Because the majority remands this case so that the trial court can factor J.M.’s youth into the consent equation, I concur in the order of remand. I would hope, however, that a new overall appraisal of the question of consent could be made in view of this record. In this connection, J.M.’s counsel asked the trial court to note that J.M. was fourteen at the time of this encounter, arguing:

He was traveling alone and certainly under the circumstances alone, black, barely a teenage youth, would feel pressure when the police came up to him.

On remand, I would not want to impose upon the able trial court a formidable task of the centuries. It would be helpful to me, however, to have its appraisal of, not only whether the raising of J.M.’s arms in such a setting was in fact a consent,¹⁵ but also what bearing such a setting might have on any non-verbal consent by a fourteen year old black male who had no previous involvement with the criminal justice system and who had not been advised that he could walk away or refuse to answer.

Whether the courts speak of it or not, race is a factor that has for many years engendered distrust between black males and law enforcement personnel. See Tracey Maclin, “Black and Blue Encounters” — Some Preliminary Thoughts about Fourth Amendment Seizures: Should Race Matter?, 26 Yal.U.L.Rev. 243 (1991); see also Sheri Lynn Johnson, Race and the Decision to Detain a Suspect, 93 Yale L.J. 214 (1983). America’s history in large measure may be responsible for this phenomenon; ^it is painful to remember the era when some local sheriffs, deputies, jailers, policemen and prominent citizens cooperated with purveyors of mob violence to provide punishment for blacks accused of crime. See Walter White, “I Investigate Lynchings,” reprinted in The NegRO CaRavan (Sterling A. Brown, et al. eds. 1941). (For enterprising researchers, who remain in doubt as to numbers, read the Congressional Record detailing unsuccessful attempts to introduce and pass anti-lynching legislation.) Even today, arrest statistics suggest, whatever the causes of crime, a litany of fear and distrust.¹⁶ Sadly, in the interest of protecting the public, these statistics can be used negatively to justify unequal treatment and thus engender hostility. See generally Andrew Hacker, Two Nations, Black & White, SepaRate, Hostile, Unequal (1992). To the extent that a “drug courier profile” (alluded to by the dissenting justices in Florida v. Bostick, supra) might embrace race, it becomes circular exercise in institutionalized stereotyping.¹⁷ Our very diversity has always produced stereotyping which in turn has produced statistical data, which in turn has produced stereotyping.¹⁸ This in turn makes it difficult for our courts to apply meaningful legal standards consistent with our Constitution. I respectfully venture to suggest that no reasonable innocent black male (with any knowledge of American history) would feel free to ignore or walk away from a drug interdicting team.¹⁹ I would also suggest that if this hypothetical man was neither innocent nor reasonable, and armed, the lives of innocent people might be endangered in the close confines of a bus.

The trial court was right when it suggested that J.M. would have consented to anything. The issue, however, is whether that consent was voluntary. In determining the voluntariness of J.M.’s consent, I would factor into the totality of the circumstances the relevant characteristics of age and race, as well as the fact that appellant was not told that he was free to decline to consent to the search. See Mendenhall, supra, 446 U.S. at 558, 100 S.Ct. at 1879, citing Schneckloth, supra, 412 U.S. at 226, 93 S.Ct. at 2046.

I concur in remand.

1 .See Florida v. Bostick, — U.S. -, - n. 1, 111 S.Ct. 2382, 2390 n. 1, 115 L.Ed.2d 389 (1991). Justice Marshall, with whom Justice Blackmun and Justice Stevens join, dissenting:

2 . See Judge Farrell’s opinion at p. 499.

3 . See generally United States v. Mendenhall, 446 U.S. 544, 100 S.Ct. 1870, 64 L.Ed.2d 497 (1980); Schneckloth v. Bustamonte, 412 U.S. 218, 93 S.Ct. 2041, 36 L.Ed.2d 854 (1973).

4 . See Michigan v. Chesternut, 486 U.S. 567, 574, 108 S.Ct. 1975, 1979, 100 L.Ed.2d 565 (1988).

5 . See Schneckloth, supra, 412 U.S. at 229, 93 S.Ct. at 2048.

6 . See United States v. Joseph, 282 U.S.App.D.C. 102, 105, 892 F.2d 118, 121 (1989).

7 . According to the bus manifest, twenty-nine other passengers remained seated during the scheduled ten minute rest stop in Washington (the last stop having been made in Philadelphia). The officers boarded the bus immediately as the bus driver alighted, announced their identity and purpose over the intercom, and stationed themselves in the narrow aisle. One officer displayed his gun.

8 . See Mendenhall, supra, 446 U.S. at 551, 100 S.Ct. at 1875; Guadalupe v. United States, 585 A.2d 1348 (D.C.1991).

9 . Detective Zattau testified that he did not have consent-to-search forms with him that night and was unaware of the existence of such forms (other than for consent to search premises).

10 . The trial judge recalled the detective to the stand to describe his training and method of operation. For a comprehensive description of the history and modus operandi of the interdiction squad, see United States v. Maragh, 756 F.Supp. 18 (D.D.C.1991). See generally Sandra Guerra, Drug Interdiction Operations: Finding the Balance, 82 J.CrimX. & Criminology 1109 (1992).

11 .Detective Zattau’s testimony as to body movements was consistent with J.M.’s testimony. According to J.M., he "turned his body” in a slanted way and "raised his hands.”

12 . In rejecting J.M.’s argument as to seizure, the court relied on the fact that the detective's testimony on recall showed that he had followed interdiction procedures (Zattau was not overbearing, spoke in conversational tones, did not display a weapon, etc.). The court remarked that the detective was not required to undercut his efforts by advising J.M. of his right to refuse to answer questions and refuse consent to the search.

13 . See Cherry v. State, 86 Md.App. 234, 586 A.2d 70, 72-73 (1991) (citations omitted):

We are now asked to review the constitutionality of the search. In so doing, we extend great deference to the fact-finding of the suppression hearing judge with respect to determining the credibility of the witnesses and to weighing and determining first level facts.... But as to the ultimate conclusionary fact of whether appellant's consent was truly voluntary, we must make our own independent constitutional appraisal by reviewing the law and applying it to the facts of this case.

14 . In re J.M., 596 A.2d 961 (D.C.1991), vacated, February 5, 1992.

15 . See, e.g., State v. Zapp, 108 Idaho, 701 P.2d 671 (App.1985) (shoulder shrug did not constitute consent to search paper bag in appellant's hand); Rosell v. State, 433 So.2d 1260 (Fla.App.1983) (non-English speaking appellants merely acquiesced to uniformed officers who, using gestures, directed appellants to open camper top of truck).

16 . In our country’s cities, during the year 1989, 46% of the persons arrested for drug violations were black, despite the fact that blacks constitute 12% of the nation’s population. During the same period, in our cities, arrests of black persons under 18 years of age constituted 51.5% of the total. Federal Bureau of Investigation, U.S. Dep’t of Justice, Crime in the United States 1989 (1990). The statistics do not show how many of the arrests resulted in prosecutions or convictions.

17 . The United States Court for the Eighth Circuit recently met head-on the issue of race in drug interdiction. See United States v. Weaver, 966 F.2d 391, 392 (8th Cir.1992). Chief Judge Arnold (dissenting from the majority’s affir-mance of the trial court’s denial of a motion to suppress) after alluding to an agent’s description as a "roughly dressed black male” (reported in the majority opinion) observed:

Use of race as a factor simply reinforces the kind of stereotyping that lies behind drug-courier profiles. When public officials begin to regard large groups of citizens as presumptively criminal, this country is in a perilous situation indeed.

The majority countered:

We agree with the dissent that large groups of our citizens should not be regarded by law enforcement officers as presumptively criminal based upon their race. We would not hesitate to hold that a solely race-based suspicion of drug courier status would not pass constitutional muster.

• Id. at 394 n. 2.

After alluding to the agent’s testimony about the Crips and the Bloods in Los Angeles, and notorious interstate travel, the majority concluded that race, when coupled with other facts could be a factor in the agent’s decision to approach and detain. Id.

18 . In his farewell speech to the House of Representatives on January 9, 1901, Congressman George H. White (1852-1918) noted:

I would not thus digress from the question of issue and detain the House in [this] discussion ... but for the constant and the persistent efforts of certain gentlemen upon this floor to mold and rivet public sentiment against us as a people and to lose no opportunity to hold up the unfortunate few who commit crimes ... as other races do, as fair specimens of representatives of the entire colored race.

George H. White, “Defense of the Negro Race,” reprinted in The Negro Caravan (Sterling A. Brown, et al. eds. 1941).

19 . Putting aside the status of race, I note that commentators have suggested that a reasonable person who would feel free to walk away is a legal fiction. See Shawn V. Lewis, Note, Fourth Amendment Protection Against Reasonable Seizures of the Person: The Intrusiveness of Dragnet Styled Drug Sweeps, 82 J.Crim.L. & Criminology 797 (1992); see also Thomas K. Clancey, The Future of Fourth Amendment Seizure Analysis After Hodari D. and Bostick, 28 Am.Crim.L.Rev. 799 (1991).

Chief Judge Arnold, dissenting in United States v. Weaver, supra note 17, aptly observed:

It would be interesting to know how many innocent people have been stopped, either for questioning alone, or for the search of their luggage. This information, which we never seem to get in these cases, would go far towards enabling us to say whether the kind of police tactic we have before us is reasonable, which is, after all, the controlling criterion in applying the Fourth Amendment.