Burton v. United States

SCHWELB,' Associate Judge,

dissenting:

The trial judge, who wrestled with the difficult constitutional issue presented by this record in a thoughtful and conscientious manner, stated during an exchange with counsel (which occurred after all the evidence was in) that “I think it’s a very close case.” I agree with the judge. Realistically, however, in light of all of the circumstances as described by the judge shortly after he heard the testimony, I cannot join the majority in its essentially legal conclusion 1 that Burton’s consent to the search of his person could reasonably be characterized as voluntary at the time that it took place. Accordingly, I respectfully dissent.

I.

THE “INHERENTLY COERCIVE NATURE” OF THE POLICE CONDUCT

In taking the case under advisement, the trial judge asked rhetorically whether

considering how closely I think you have to scrutinize these types of situations because of the inherently] coercive nature of the police approaching someone in a confining situation like a bus, need not the police be very circumspect in reference to what they do?

(Emphasis added). The judge viewed the situation in this case as “totally different” from a request to search made at a defendant’s home, or even on the street, because “that would have a different psychological impact under these circumstances.” The judge thus recognized, shortly after hearing the testimony, that the situation confronting Burton was “inherently coercive.” 2 Moreover, in my view, the existence of coercive pressures was not due solely to the physical layout of the bus. “Many persons, perhaps most, would view the request of a police officer to make a search as having the force of law.” State v. Johnson, 68 N.J. 349 , 346 A.2d 66, 68 (1975). In my opinion, everything that the police did or failed to do and that Burton did or failed to do must be considered with the coercive potential of the situation firmly in mind.

The detectives who conducted this search were not born yesterday. They were surely aware that it would not be easy, within the confines of that bus, for a passenger to defy them and to withhold his consent. 3 Detective Oxendine testified that she did not advise Burton of his right to terminate the discussion without answering her questions because “the law says I don’t have to tell him, so no, I didn’t tell him.” Obviously, she did not want to make such defiance any easier. Detective Hairston likewise stated that he did not tell Burton that he was not required to consent to the search.

There was a meaningful message in the detectives’ failure to apprise Burton of his rights. In United States v. Mendenhall, 446 U.S. 544 , 100 S.Ct. 1870 , 64 L.Ed.2d 497 (1980), the Supreme Court sustained the search of a woman at an airport, largely because the officers had carefully advised her of her rights. The Court stated that

*751 it is especially significant that the respondent was twice expressly told that she was free to decline to consent to the search, and only thereafter explicitly consented to it. Although the Constitution does not require “proof of knowledge of a right to refuse as the sine qua non of an effective consent to a search,” [Schneckloth v. Bustamonte, 412 U.S. 218 ], at 234 [ 93 S.Ct. 2041, 2051 , 36 L.Ed.2d 854 ] [1973] (footnote omitted), such knowledge was highly relevant to the determination that there had been consent. And, perhaps more important for present purposes, the fact that the officers themselves informed the respondent that she was free to withhold her consent substantially lessened the probability that their conduct could reasonably have appeared to her to be coercive.

Id. at 558-59, 100 S.Ct. at 1879 (emphasis added). In In re J.M., supra note 2, 619 A.2d at 503, this court, quoting from Men-denhall, also recognized the significance, in appraising the voluntariness of a defendant’s consent, of the police having advised (or failed to advise) him of his rights.

The converse of the last sentence of the quoted passage from Mendenhall is equally compelling — the detectives’ failure in this case to inform Burton that he had the right to refuse to consent was also “especially significant,” for it substantially increased the probability that the police conduct could reasonably have appeared to him to be coercive. Mendenhall, supra, 446 U.S. at 558-59 , 100 S.Ct. at 1879-80 . Indeed, such a failure on the part of the police to advise a defendant of his right to refuse consent “will sometimes invalidate a consent search because such a warning was necessary to counteract other coercive elements.” 3 W. LaFave, SEARCH AND SEIZURE: A TREATISE ON THE FOURTH Amendment § 8.2(i), at 213 (2d ed. 1987). As the judge himself remarked, there were substantial coercive elements present here.

II.

THE ALLEGED WITHDRAWAL OF CONSENT

According to the accounts of all three witnesses who described the search, Burton’s acquiescence in it, by the time the encounter ended, was at best reluctant. Detective Ox-endine testified that Burton stuck his hand in his jacket pocket and turned away; he “looked as if he was trying to hide something ... between the seat and the wall of the bus.” According to Ms. Oxendine, Burton “turned toward the window as if he was trying to take [the contraband] out right before Ronnie [Hairston] found it.” To a lay observer not schooled in nice legal distinctions, this would surely come across as action designed to thwart a search, not to continue to consent to it. We are supposed to be “earthy” rather than academic in approaching these questions, and to display “hard-nosed realism” too. See, e.g., Gomez v. United States, 597 A.2d 884, 889 (D.C.1991) (citation omitted). This “earthy” approach should be available to both parties to the controversy — to defendants as well as to prosecutors and detectives. Common sense tells us that trying to hide something does not constitute, nor is it consistent with, continued consent to a search in which the incriminating item sought to be concealed would inevitably be found.

Detective Hairston’s account is likewise hard to reconcile with the notion that Burton was still “freely” consenting to a search which, if successfully completed, would all but inevitably land him in the penitentiary for many years to come. According to Hair-ston, Burton grabbed his jacket as Hairston was about to search him. Burton also looked away, out of the window. Burton’s hand was in his jacket until Hairston “asked” him to remove it, which Burton did. At this point, according to the detective, he had seen a “bulge,” and he was “thinking about my safety because I thought there might be a weapon in his pocket.”

The idea that Burton might be about to pull a revolver or other weapon on an officer cannot easily be squared with the perception that he was at that time making or adhering to a free and unconstrained choice to submit to a search. To adopt the sensible words spoken on the subject by the trial judge shortly after he heard the evidence, “I think *752 that if a ... police officer believes that someone who has previously given consent is now going actually for a weapon that potentially is going to be used to injure the officers, I think conceivably that even lends more credence to the conclusion that the officer should have known that consent was no longer being given.”

Burton testified even more directly that he was trying to communicate to the detective his objection to the proposed search:

Q Well did you just sit there and let him search you? Or did you move away?

A ... I moved toward the window like this.

Q And when you made that movement, those movements, in your mind were you telling him that you wanted to be searched? Or telling him that you didn’t want to be searched?

A Telling him I didn’t want to be searched.[ 4 ]

Given these accounts provided by the participants, it is pretty obvious that by the time Detective Hairston told him to take his hand out of his pocket, Burton did not want Hair-ston to search him. His continued consent to the search, if such continued consent existed, was not “the product of an essentially free and unconstrained choice by its maker.” Schneckloth, supra, 412 U.S. at 225 , 93 S.Ct. at 2047 . If Burton nevertheless “consented,” he did so because he felt, rightly or wrongly, that he had no choice, and that the consequences of not consenting would be so unfavorable to him that he had better submit to Hairston’s wishes, even if this meant that the detective would find the crack.

I do not read either the trial judge’s findings or the majority opinion as holding that Burton had any other motivation for his continued “consent,” and I do not see how any reasonable trier of fact could come up with any explanation other than apprehension of consequences even worse than the discovery of the cocaine. Nevertheless, the trial judge held, and my colleagues agree, that the search was legal because Burton initially consented to it and because he never “unequivocally” withdrew his consent. I now turn to these issues.

III.

LEGAL DISCUSSION

The government freely concedes that the search of Burton was made without a warrant. Detective Oxendine also acknowledged that, at the time she approached Burton, she had no information suggesting that he was transporting unlawful drugs or that he was engaged in any other unlawful activity. Obviously, she was without probable cause to arrest or search Burton and lacked articula-ble suspicion to detain him. Warrantless searches and seizures conducted under these circumstances are “per se unreasonable under the Fourth Amendment, subject only to a few specifically established and well-delineated exceptions.” Katz v. United States, 389 U.S. 347, 357 , 88 S.Ct. 507, 514 , 19 L.Ed.2d 576 (1967).

A search conducted in conformity with an individual’s free and unconstrained consent falls within one of these exceptions. Schneckloth, supra, 412 U.S. at 219 , 93 S.Ct. at 2043-44 . Where the prosecution claims that the defendant has consented to a search, however, it must prove that there was no duress or coercion, express or implied. Judd v. United States, 89 U.S.App.D.C. 64, 66 , 190 F.2d 649, 651 (1951). In this jurisdiction, “clear and positive testimony” has been required. Id. 5 Our courts have also long rec *753 ognized that a measure of implicit duress is likely to be present whenever officers demand the right to search a citizen or his home. Id. (citations omitted); see also Higgins v. United States, 93 U.S.App.D.C. 340 , 209 F.2d 819 (1954). 6 More recently, while acknowledging that duress is not the only plausible inference to be drawn from a suspect’s consent to police action which is likely to result in his apprehension, we have noted that “one would ordinarily presume that most individuals would not voluntarily act in such a manner as to virtually seal their own doom.” Lawrence v. United States, 566 A.2d 57 , 63 n. 12 (D.C.1989).

The pressure to accommodate the police is powerful, especially in circumstances such as those here. As Professor LaFave has explained,

[g]iven the fact that the other bus passengers are unlikely to be similarly uncooperative and that it will be generally understood that persons approached by police “normally accede to the police officer’s request,” such stonewalling would be perceived by the reasonable person (quite ' 'or-rectly) as a course which would make him an object of suspicion and thus a subject of further attention by the police team involved in the sweep or by officers at subsequent stops. In this respect, such flat-out refusal to cooperate with the police is quite different from the more neutral response available to a person confronted by police “in an open and public space,” which is “to walk away or to ignore questions addressed to him.” Also, in light of the show of authority involved in undertaking a bus sweep, the dynamics of the situation make a nonconforming refusal to cooperate an especially unlikely choice. That this is so is ineluctably apparent when it is considered that “such means of transportation are utilized largely by the underclass of this nation who, because of greater concerns (such as being able to survive), do not often complain about such deprivations.”

3 LaFave, supra, § 9.2A, at 120 (Supp.1993) (footnotes omitted). In the present ease, as I have explained, the trial judge recognized, essentially for the reasons stated by Professor LaFave, that the circumstances before him contained intrinsically coercive elements. The dispositive question, in my view, is whether the government established that at *754 the time Detective Hairston was conducting the search of Burton’s person, he was doing so with Burton’s free and unconstrained consent, and that this consent was secured without duress or coercion, express or implied. One way of approaching that issue is to divide it up, as the majority has done, into two sub-questions, namely: (1) whether Burton’s consent was initially freely given; and (2) if so, whether it was subsequently withdrawn. No matter how we frame or subdivide the inquiry, however, the constitutional command is the same: the prosecution must prove that Burton continued to consent freely to the search at the critical moment when Hairston searched him. With due respect to my colleagues, I cannot agree, in light of the judge’s comments, that the government proved any such thing.

Proceeding with the two-part inquiry described above and noting the judge’s finding that Burton orally agreed to be searched, my colleagues rely heavily on a number of cases which are said to stand for the proposition that the withdrawal of consent must be unequivocal. Most of the decisions relied on by the majority, however, actually hold a good deal less than that, and they shed little if any light on the issue here. 7 Because the government bears the burden of proving consent because it must establish the absence of duress or coercion, express or implied Judd, supra, 89 U.S.App.D.C. at 66 , 190 F.2d at 651 , and because “[tjhis burden cannot be discharged by showing no more than acquiescence to a claim of lawful authority,” Bumper, supra note 5, 391 U.S. at 548-49, 88 S.Ct. at 1792 , I am not sure that a requirement that a withdrawal of consent must be unequivocal is consistent with the constitutional command. Such a requirement may not, in any event, be permitted to divert the court from the main issue, namely, whether the government has proved that a truly free and unconstrained consent existed at the time the search was conducted.

But even if I were to assume, arguendo, that the “unequivocal withdrawal” require *755 ment is or should be in force in the District, the government still has not met its burden. When Burton turned away from Hairston, placed his hand in his jacket pocket, and led one detective to believe that he (Burton) was attempting to hide something and the other detective apprehend that he may be reaching for a weapon, his conduct was so incompatible with a continued willingness to be searched that, at least in my view, the prior oral consent had been withdrawn as a matter of law.

Professor LaFave has described, and the trial judge in this case has explicitly recognized, the coercive character of the situation in which Burton found himself. It would have been very difficult, in Burton’s position, not to cooperate with the detectives. If Burton’s maneuvers, obviously designed to avoid being searched further, were insufficient to communicate that wish, then for all practical purposes nothing short of “hell, no!” to the detectives would have sufficed. But everyone, including the detectives and their prey, knows how hard it is to thwart the wishes of police officers in the situation in which Burton found himself. To require resounding words of defiance would allow only the most fearless or heroic (if not positively foolhardy) passenger to vindicate his constitutional right not to be searched, even though the detectives were without a warrant and without probable cause. Such a rule would make the enjoyment of that right so perilous that few if any citizens would be prepared to take the risk and pay the price.

My colleagues apprehend that unless we insist that a revocation of consent must be more unequivocal than Burton’s actions in this case, police officers will not know when they may search and when they may not, so that any more flexible rule will make their lives unduly difficult. Under most circumstances, I would share their concern. Courts should exercise restraint in second-guessing the reactions of police officers who have to make split-second decisions when confronted with dangerous events on the streets.

In my view, however, these considerations have no application here. The police created the underlying situation by setting out to attempt to conduct searches of citizens as to whom they lacked probable cause or even articulable suspicion. They proposed to accomplish this by securing these citizens’ consent. That consent would have to be given or refused in an intrinsically coercive environment in which, as the detectives surely knew, it would be very difficult for a passenger to say no. Understandable fear of defying the police was thus used as a substitute for (or arguably a circumvention of) the requirement of probable cause.

Some judges and courts have recoiled from such police tactics, viewing them as more consistent with the practices of despotic regimes than with the institutions and traditions of a free nation. See, e.g., Florida v. Bostick, 501 U.S. 429, 442-44 , 111 S.Ct. 2382, 2390-91 , 115 L.Ed.2d 389 (1991) (Marshall, J., dissenting), and decisions there dted. Whether or not such criticisms are justified, 8 important constitutional rights are at stake, and I do not think that the enjoyment of these rights should be curtailed because an individual under intense pressure seeks to avoid the search by his actions, rather than by making openly defiant proclamations. Where the government relies on consent as a basis for searching a citizen without probable cause in a coercive environment, then the government must be required to prove its case, and any ambiguity should be resolved in favor of the rights of the citizen.

Drug dealers and couriers are not popular, nor do they deserve to be. At least on this occasion, Burton was not the guy in the white hat. To suppress the fruits of this search and others like it would mean that, as a result of our enforcement of the Fourth Amendment, some more crack cocaine or POP or heroin will get through to a dealer at the end of the bus ride. But to sustain an obviously reluctant “consent” in an intrinsically coercive environment (which was made more so, inter alia, by the failure of the police of advise Burton of his rights) is to exact a very high price for the seizure of the drugs.

*756 In my opinion, the Constitution proscribes what the police did here. It is not only drug dealers whose privacy and liberty are compromised when the police obtain “consent” in this manner. Ordinary law-abiding citizens, especially those whose circumstances require them to use buses rather than limousines, will also be subject to the Hobson’s choice between surrendering their rights or defying the police. Accordingly, I respectfully dissent. 9

. Whether a defendant’s consent to a search was voluntary is "a question of fact to be determined from all of the circumstances.” Schneckloth v. Bustamonte, 412 U.S. 218, 248-49 , 93 S.Ct. 2041, 2059 , 36 L.Ed.2d 854 (1973). Nevertheless, once the evidentiary facts have been found, the appellate court must deal with their legal consequences, particularly where, as here, constitutional rights are at stake and a novel legal issue is raised. Cf. Griffin v. United States, 618 A.2d 114, 117-18 (D.C.1992). See also note 9, infra.

. I recognize that the judge ultimately found that Burton consented to the search with a “definite and unambiguous voluntary statement.” Evidently, the judge viewed the environment as coercive, but not coercive enough to invalidate the search. Cf. In re J.M., 619 A.2d 497, 502 (D.C.1992) (en banc).

. In United States v. Felder, 732 F.Supp. 204 (D.D.C.1990), another detective from the Metropolitan Police Department’s Drug Interdiction Unit testified that he had interviewed approximately 50 passengers on board buses and about 35 on board trains. Of those 85, only 3 or 4 had refused to consent to an interview. He also stated that "when passengers who appear nervous refuse to consent to an interview, certain members of his unit then take it upon themselves to notify authorities at the next stop.” Id. at 205 .

. On cross-examination, Burton was asked the somewhat surrealistic question whether he pushed Detective Hairston away during the encounter, apparently in order to indicate that he did not wish to be searched. On redirect examination, Burton explained why he did not push Hairston:

“It would have got me locked up. Might have gotten me beaten up.”

At least in my view, Burton’s answer was quite a bit "earthier” than the apparent assumption upon which the prosecutor’s question was predicated.

. In Oliver v. United States, 618 A.2d 705, 709 (D.C.1993), we stated that "[t]he government bears the burden of proving voluntary consent by a preponderance of the evidence.” We cited Bumper v. North Carolina, 391 U.S. 543, 548 , 88 S.Ct. 1788, 1791 , 20 L.Ed.2d 797 (1968) and United States v. Matlock, 415 U.S. 164 , 178 n. 14, 94 S.Ct. 988 , 996 n. 14, 39 L.Ed.2d 242 (1974). In Bumper , the Court said nothing explicit about *753 the standard by which the government must prove voluntariness. In a footnote, 391 U.S. at 548 n. 12, 88 S.Ct. at 1792 n. 12, however, the Court cited, inter alia, Judd, which required “clear and positive testimony,” and Wren v. United States, 352 F.2d 617, 618 (10th Cir.1965), in which the court stated that “[i]n order to constitute a voluntary consent it must clearly appear that the search was voluntarily permitted.” (Emphasis added). Bumper seems to reinforce Judd , not override it.

In Matlock , the Supreme Court found it unnecessary to determine whether the standard of proof imposed on the prosecution by the trial court was unduly strict. 415 U.S. at 177 n. 14, 94 S.Ct. at 996 n. 14. The Court volunteered, by way of dictum, that “[i]n any event, the controlling burden of proof at suppression hearings should impose no greater burden than proof by a preponderance of the evidence.” Id. at 178 n. 14, 94 S.Ct. at 996 . Whether this statement could reasonably be viewed as overruling Judd's "clear and positive testimony" standard is unclear. Reading Judd, Bumper, Matlock, and Oliver together, I infer that even if the preponderance of the evidence standard applies, the court must scrutinize the evidence carefully because of the importance of the rights at stake and the obvious potential for coercion.

. In Higgins , the court took this position further than any other decision in this jurisdiction of which I am aware:

But no sane man who denies his guilt would actually be willing that policemen search his room for contraband which is certain to be discovered. It follows that when police identify themselves as such, search a room, and find contraband in it, the occupant's words or signs of acquiescence in the search, accompanied by denial of guilt, do not show consent; at least in the absence of some extraordinary circumstance ....

Id. 93 U.S.App.D.C. at 341 , 209 F.2d at 820 .

While this rationale has some common sense appeal, the Supreme Court has subsequently

rejected] the argument that the only inference to be drawn from the fact that the respondent acted in a manner so contrary to her self-interest is that she was compelled to answer the agents’ questions.

Mendenhall, supra, 446 U.S. at 555 , 100 S.Ct. at 1877 (1980) (Stewart, J., concurring) (citations omitted); see also Leavitt v. Howard, 462 F.2d 992 , 997 & n. 6 (1st Cir.1972), criticizing Higgins and stating that:

[blowing to events, even if one is not happy about them, is not the same thing as being coerced.

. In the first case cited by the majority, United States v. Alfaro, 935 F.2d 64 (5th Cir.1991), for example, Alfaro, an employee, had agreed, as a condition of employment, that his employer had the right to search his person and property. When the employer's representatives sought to exercise that right, Alfaro said that he had to go outside to talk to a lieutenant. He never asked not to be searched, nor did he otherwise protest. The court rejected his contention that consent had been withdrawn, observing that "[h]is conduct thus falls far short of an unequivocal act or statement of withdrawal, something found in most withdrawal of consent cases.” Id. at 67 (emphasis added). The court did not hold that an unequivocal statement was required in order to make a withdrawal effective. It simply noted that such a withdrawal appeared in most cases. So far as one can discern from the opinion, the question whether a withdrawal must be unambiguously communicated was not at issue.

In State v. French, 203 Neb. 435 , 279 N.W.2d 116 (1979), the next case on which my colleagues rely, the court ordered the fruits of a search suppressed, holding that "the defendant's unequivocal 'no' could only be reasonably interpreted as revoking whatever consent might have previously been given.” Id. 279 N.W.2d at 119-20 . The court thus simply noted that French’s withdrawal of consent was unequivocal, and expressed no opinion as to whether it was required to be.

In United States v. Joseph, 282 U.S.App.D.C. 102 , 892 F.2d 118 (1989), the defendant reached into a bag which an officer was searching with his consent, and asked “Do we have to do this here? ... I have underwear and things in the bag.” The court held, quite correctly, that consent had not been withdrawn, id. at 106 , 892 F.2d at 122 , for Joseph’s objection was to the place where the search was being conducted, not to the search itself.

Lawrence v. Commonwealth, 17 Va.App. 140 , 435 S.E.2d 591 (1993) is the only case relied on by the majority in which the factual situation was even remotely comparable to the one before us. In Lawrence, the defendant, who had been acting in an extremely suspicious manner, emptied his pockets in response to an officer’s request for permission to search him, but claimed that there was nothing in one pocket in which the officer observed a bulge. The officer ultimately placed his hand in Lawrence’s pocket and extracted multiple packets of heroin. A majority of the divided court held that Lawrence had not withdrawn his consent, in part because "extreme reluctan[ce]” to facilitate a search is not tantamount to a withdrawal. Id. 435 S.E.2d at 594—95.

The present case is distinguishable from Lawrence because the search there took place near the entrance to a railroad station — a far less confining and coercive environment than the inside of a bus. In any event, the excellent dissenting opinion by Judge Benton is far more persuasive, at least to me, than the Lawrence majority’s labored conception that an individual’s extreme reluctance to facilitate a search is somehow consistent with consent. As Judge Benton aptly put it, “Lawrence’s own removal of items from his pocket were responses inconsistent with a finding of consent to the search." Id. at 596.

. "[Tjhis Court is not empowered to forbid law enforcement practices simply because it considers them distasteful.” Bostick, supra, 501 U.S. at 439 , 111 S.Ct. at 2389 .

. Judge FERREN agrees in his concurring opinion, ante, at 749, that "the inherently coercive environment makes truly voluntary consent unlikely.” He is quite right; the trial judge, who heard the testimony, characterized the situation as inherently coercive. Judge FERREN does not mention this patently reasonable reaction on the part of the judge, but concludes, apparently on the basis of Schneckloth, supra, that we are compelled to uphold the search in spite of the inherently coercive circumstances.

According to Schneckloth , however, Burton's consent to the search may be sustained only if, at the time of the search, that consent was "the product of an essentially free and unconstrained choice by its maker.” 412 U.S. at 225 , 93 S.Ct. at 2047 . The judge recognized upon hearing the testimony that a coercive environment existed. He thus found, for all practical purposes, that Burton’s choice was neither "free” nor "unconstrained.” The judge nevertheless concluded, evidently as a matter of law, that Burton’s consent was valid notwithstanding the inherently coercive environment, and he therefore denied Burton’s motion to suppress.

Under these particular circumstances, I cannot agree with Judge FERREN that we are compelled to affirm on the basis of a deferential standard of review. On the contrary, we should heed the judge's common sense description of the situation as he perceived it upon hearing the evidence.