# Brown v. United States

> District of Columbia Court of Appeals · November 25, 2009 · 983 A.2d 1023

URL: https://www.frixlaw.com/law-library/cases/9756762

## Case

- **Full name:** Valerie M. BROWN, Appellant v. UNITED STATES, Appellee
- **Court:** District of Columbia Court of Appeals
- **Decided:** November 25, 2009
- **Citations:** 983 A.2d 1023; 2009 D.C. App. LEXIS 600; 2009 WL 4058219
- **Precedential status:** Published
- **Opinion:** Concurring in part by Schwelb
- **Judges:** Kern, Terry, Schwelb
- **Cited by:** 17 later opinions in the Frix Law Library

## Citator (automated)

- No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases.
- Full citator and citing cases: https://www.frixlaw.com/law-library/cases/9756762

## How later opinions describe it (automated extraction)

- holding that there was no seizure where a police officer walked up to the defendant, spoke in a normal tone, did not place her hand on her gun, did not make any threatening gestures, and asked, "Do you have any guns, drugs, or narcotics on you?”; the defendant replied, "I’m no…
- holding that although the appellant “did not give explicit, verbal permission” to search inside a pill bottle, she “impliedly consented to the search by handing the bottle to [the officer] in response to a question about whether she had any ‘guns, drugs, or narcotics’”
- holding that Brown was not seized when two uniformed, armed police officers approached her and several other persons standing with her on a sidewalk, some members of the group walked away without hindrance, and the officers then questioned Brown, who did not walk away
- explaining that “repeated questioning of a defendant can cause an encounter to lose ‘its consensual nature’ if the police officers' questions or actions ‘convey a message that compliance with their requests is required[]’”
- holding that appellant consented to a search by handing 9 a pill bottle to police in response to a question about “whether she had any ‘guns, drugs, or narcotics’”

## Opinion text

SCHWELB, Senior Judge,
concurring in the judgment but dissenting in part:
In my opinion, the notion that a reasonable person in Valerie Brown’s position “would have felt free to leave,” 1 when the police had asked her twice whether she had a gun or narcotics on her, is unrealistic and contrary to common sense. “[C]ommentators have suggested that a reasonable person who would feel free to walk away [from the police] is a legal fiction.” In re J.M., 619 A.2d 497 , 513 n. 19 (D.C.1992) (en banc) (Mack, J., concurring in the remand and dissenting in part) (citations omitted).
We recognized two decades ago that as Professor LaFave has explained, if the concept of “freedom to walk away” is taken to mean that a pedestrian whose movements have been interrupted and who is questioned is likely to feel free to depart without responding, it is a highly questionable conclusion. As noted Illinois Migrant Council v. Pilliod [ 398 F.Supp. 882 (N.D.Ill.1975), aff'd, 540 F.2d 1062 (7th Cir.1976) ]: “[i]mplicit in the introduction of the [officer] and the initial questioning is a show of authority to which the average person encountered will feel obliged to stop and respond. Few will feel that they can walk away or refuse to answer.”
Lawrence v. United States, 566 A.2d 57, 61 (D.C.1989) (quoting W. LaFave, Search and Seizure § 9.2(h), at 410-11 (1987 & Supp. 1989) (hereinafter LaFave)). As further noted in Lawrence ,
*1028 the [Supreme] Court has concluded that reasonable persons would feel free to leave under circumstances in which many of us would discern the existence of considerable pressure not to do so. See, e.g., [United States v.] Mendenhall, [ 446 U.S. 544 , 100 S.Ct. 1870 , 64 L.Ed.2d 497 (1980) ].
Id. at 60.
It is worth emphasizing that, in some kinds of controversies implicating the liberty of the citizen, courts have been more insistent than in the Fourth Amendment context that a citizen’s postulated freedom of action must be real, rather than merely theoretical:
In other areas of the law, the concept of freedom of choice is an expansive one. In racial discrimination cases, for example, courts have long held that freedom of choice can exist only if the choice is free in the practical context of its exercise. Coppedge v. Franklin County Bd. of Educ., 273 F.Supp. 289, 299 (E.D.N.C.1967), aff 'd, 394 F.2d 410 (4th Cir.1968). “If choice influencing factors are not eliminated, freedom of choice is a fantasy.” Lee v. Macon County Bd. of Educ., 267 F.Supp. 458, 479 (M.D.Ala.1967) (three judge court), aff'd sub nom. Wallace v. United States, 389 U.S. 215 , 88 S.Ct. 415 , 19 L.Ed.2d 422 (1967). If these principles were transposed to Fourth Amendment jurisprudence, suppression would surely be called for in a host of cases, including the present one. An officer’s request to Lawrence to stop and open his hand, under the circumstances of this case, must reasonably be deemed, at least, a significant “choice influencing factor.” As one empirical study has concluded,
in high-crime areas, particularly, persons who stop and answer police questions do so for a variety of reasons, including a willingness to cooperate with police, a fear of police, a belief that a refusal to cooperate will result in arrest, or a combination of all three.
L. Tiffany, D. McIntyre & D. Totenberg, Deteotion of Crime 17 (1967), quoted in 3 W. LaFave, Search and Seizure § 9.2(h) at 408 (1987 and Supp. 1989).
Lawrence, 566 A.2d at 60-61 .
In this case, any reasonable person in Ms. Brown’s position would have believed that if she had continued to decline to respond to the policewoman’s questions, and if she had tried to walk away, the police would have become even more suspicious of her, and that it would not have been in her interest to argue with, defy, or make an enemy of the police. To suppose that Ms. Brown then handed over to Officer Hoffman a pill bottle containing cocaine “voluntarily” is either to believe in the tooth fairy or to redefine “voluntary” to include “out of fear.” The law should not pretend that something is so when it is not so. 2
*1029 Be that as it may, however, we are required to follow Supreme Court precedent, see, e.g., Mendenhall, 446 U.S. at 554-55 , 100 S.Ct. 1870 , as well as our own, including Lawrence; 3 see also Kelly v. United States, 580 A.2d 1282, 1285 (D.C.1990). I cannot reasonably argue that the present case is meaningfully distinguishable from these and other authorities cited in the opinion of the court. Thus, although I do not agree with, and therefore dissent from, the statement in the majority opinion that “we are satisfied that a reasonable person [in Ms. Brown’s position] would have felt free to leave under these circumstances,” I concur in the judgment of affir-mance.
. As the majority acknowledges, the trial judge never made an explicit finding to the effect that a reasonable person in Ms. Brown’s situation would have felt free to leave. The majority surmises that the judge must have implicitly so found, for she concluded that there was no Fourth Amendment violation. I suppose that this is a plausible explanation of the judge's omission of what would have been a critical finding.
. I think it worth adding that my quarrel here is not with the result, of the case, but with what I regard as its fallacious predicate, namely, that a reasonable person in Ms. Brown's position would feel free to leave when common sense tells us that she or he would surely be apprehensive as to what would occur if she failed to cooperate with the police or comply with their requests or demands. If the doctrine animating this case and others before it were based on a more forthright rationale' — e.g., that the situation is, in some measure, coercive, but that this level of coercion is not "unreasonable” within the meaning of the Fourth Amendment — then the police could go about what is often important business solving crimes without the courts more or less pretending that something is true when it is not.
This approach is similar to that of Professor LaFave, who would permit police officers to
seek cooperation, even where this may involve inconvenience or embarrassment for the citizen, and even though many citizens will defer to this authority of the police *1029 because they believe — in some vague way— that they should.
Lawrence, 566 A.2d at 61 (quoting 3 LaFave § 9.2(h) at 44). According to LaFave, "moral and instinctive pressures to cooperate are generally sound, and the police may quite properly rely on them.” Id. (Internal quotation marks omitted).
. In Lawrence , in which the opinion of the court was written by the author of this opinion, we affirmed Lawrence’s conviction on facts no more indicative than is the present record of true voluntariness or freedom to leave. One judge dissented, concluding that the seized contraband should have been suppressed. Id. at 64 .

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/9756762. Public record. Not legal advice.