CERTIFICATE AS TO PARTIES,

RULINGS, AND RELATED CASES

Pursuant to Rule 28(a)(1) of the General Rules of this Court, appellant, Carlos xxxxxxx, hereby states as follows:

A. Parties and Amici: The parties below were the defendant-appellant, Carlos xxxxxxx, and the plaintiff-appellee, the United States of America. There are no amici.

B. Rulings Under Review:

The Honorable Gerhard A. Gesell's January 4 and 6, 1993, denial of the motions to suppress based upon a conclusion that Mr. xxxxxxx had voluntarily consented to a search despite findings that Mr. xxxxxxx felt he had no choice but to submit to the police requests and that he acquiesced out of fear that he would be hurt if he refused due to his background and prior experiences, and based on the absence of any overt coercion by the police and Mr. xxxxxxx' failure to communicate his fear of the police so that they were aware of it.

C. Related Cases: The case has not been before this Court or any other court previously. Undersigned counsel knows of no related cases.

TABLE OF CONTENTS

CERTIFICATE AS TO PARTIES, RULINGS, AND RELATED CASES i

TABLE OF CONTENTS ii

TABLE OF AUTHORITIES iv

ISSUES PRESENTED . . . . . . . . . . . . . . . . . . . . . . . 1

JURISDICTION . . . . . . . . . . . . . . . . . . . . . . . . . 2

STATUTES AND RULES . . . . . . . . . . . . . . . . . . . . . . 2

STATEMENT OF THE CASE . . . . . . . . . . . . . . . . . . . . 2

Proceedings Below . . . . . . . . . . . . . . . . . . . . 2

Statement of Facts . . . . . . . . . . . . . . . . . . . 3

1. The Government's Evidence: Officer Pena's Testimony 3

2. The Defense Evidence: Carlos xxxxxxx' Testimony 7

3. The District Court's Ruling 10

a. Objective Factors Discussed 13

b. Subjective Factors 14

SUMMARY OF ARGUMENT . . . . . . . . . . . . . . . . . . . . . 16

ARGUMENT . . . . . . . . . . . . . . . . . . . . . . . . . . . 17

I. Standard of Review 17

II. The District Court Erred In Concluding That Mr. xxxxxxx Voluntarily Consented To A Warrantless Search Where It Found That He Acquiesced To The Police Out Of Fear, Where The Objective And Subjective Factors Militated Against A Finding Of Voluntary Consent, And Where The District Court Injected Irrelevant Considerations Into Its Decision 17

A. Where The District Court Found That Mr. xxxxxxx Felt He Had No Choice But To Submit To The Police Requests And That He Acquiesced Out Of Fear Of Being Hurt If He Refused It Clearly Erred In Concluding That Mr. xxxxxxx Had Voluntarily Consented to A Search 19

B. Where The District Court Found That Mr. xxxxxxx Had Only Limited Education, Had Been Surrounded By A Number Of Police Officers, Never Had Been Told Of His Right To Refuse Consent, And Feared The Police Based Upon His Background And Prior Experiences It Clearly Erred In Concluding That Mr. xxxxxxx Had Voluntarily Consented To A Search 21

C. The District Court Erred In Relying Upon The Absence Of Any Overt Coercion By The Police And Upon Mr. xxxxxxx' Failure To Communicate His Fright To The Police As Reasons For Concluding That His Consent To Search Was Voluntary 25

CONCLUSION . . . . . . . . . . . . . . . . . . . . . . . . . . 28

CERTIFICATE OF SERVICE . . . . . . . . . . . . . . . . . . . 29

ADDENDUM

UNITED STATES COURT OF APPEALS

FOR THE DISTRICT OF COLUMBIA CIRCUIT

No.

UNITED STATES OF AMERICA, Appellee,

CARLOS ALBERTO xxxxxxx Appellant,

APPEAL FROM THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF COLUMBIA

BRIEF FOR APPELLANT

ISSUE PRESENTED

I. Whether the district court clearly erred in failing to suppress the evidence when it concluded that Mr. xxxxxxx had given apparent voluntary consent to a search even though it credited Mr. xxxxxxx' testimony and found that he "acquiesced in all police requests fearful that he would be hurt if he refused ... [and] felt he had no choice but to submit" and where the objective and subjective factors militated against a finding of voluntary consent and the district court injected irrelevant considerations into its decision.

JURISDICTION

The district court had jurisdiction pursuant to 18 U.S.C. з3231. The notice of appeal having been filed within the ten-day period of Fed. R. App. P. 4(b), this Court has jurisdiction pursuant to 28 U.S.C. з1291.

STATUTES AND RULES

Pursuant to Rule 28(f) of the Federal Rules of Appellate Procedure and Rule 11(a)(3) of the General Rules of this Court, pertinent statutes, rules, regulations, are reproduced in the Addendum to this brief.

STATEMENT OF THE CASE

Proceedings Below

Carlos Alberto xxxxxxx was arrested on September 30, 1992, based upon the police having searched a box containing a stereo inside of which they found two wallets containing heroin. On October 27, 1992, the grand jury returned a one-count indictment against Mr. xxxxxxx, charging him with possession with the intent to distribute a mixture and substance containing a detectable amount of heroin in an amount greater than 100 grams in violation of 21 U.S.C. зз841(a)(1) and 841(b)(1)(B)(i).

A motions hearing was held on December 29, 1992, and on January 4, 1993, Mr. xxxxxxx entered a conditional guilty plea, pursuant to F.R.Cr.P. 11(a)(2), reserving his right to appeal the district court's denial of the suppression motions. On May 10, 1993, he was sentenced to a period of incarceration of sixty months followed by a term of four years' supervised release. A timely notice of appeal was filed on May 12, 1993.

Statement of Facts

1. The Government's Evidence: Officer Pena's Testimony

At the motions hearing, Officer Maria Pena of the Interdiction Unit of the Metropolitan Police Department's Narcotics and Special Investigations Division, testified that, dressed in plain clothes, she and four other police officers, boarded a train on September 30, 1992, that had arrived at approximately 3:42 p.m. at Union Station. [A. 44-46]. The train had come from Miami en route to New York City. [A. 46]. Detective Hanson and Officer Pena approached Mr. xxxxxxx in Roomette Number 5 on that train based upon information she had received about his reservation from Amtrak Officer Cook. [A. 46-47, 55-56]. That information was that the reservation had been paid in cash shortly before the train's departure and that there was no call-back number. [A. 46]. She considered Miami a "source city." [A. 46].

Officer Pena admitted that as soon as the train pulled into Union Station she knew that she was going to interview the person in Roomette Number 5 and that Mr. xxxxxxx was the only person in that roomette. [A. 56]. Officer Pena along with Detective Hanson and Amtrak Investigator Cook went to that roomette. [A. 56-57]. The door to the roomette was only slightly wider than a standard courtroom witness chair and Officer Pena spoke with Mr. xxxxxxx, who was inside the roomette, while Detective Hanson and Investigator Cook stood to her side. [A. 57-59]. The sole point of entry and exit into the roomette was the door in which Officer Pena was standing while she interviewed Mr. xxxxxxx, and the passageway outside the roomette was narrow. [A. 57-58]. The roomette itself was very small. [A. 47, 56-57, 61-63].

Initially, Detective Hanson spoke with Mr. xxxxxxx and showed him his police identification folder. [A. 47, 56-57, 63]. Thereafter, Officer Pena did the same. [A. 64]. Mr. xxxxxxx did not speak English. [A. 47]. Officer Pena conversed with him in Spanish. [A. 47]. As has become the routine of the Interdiction Unit officers, Officer Pena identified herself and asked Mr. xxxxxxx whether she could speak with him. [A. 47, 64-65]. Officer Pena did not advise Mr. xxxxxxx that he did not have to speak with her. [A. 65]. When he agreed, she explained that her purpose was the interception of weapons and drugs entering the District of Columbia and engaged him in a conversation during which she learned that he had come to the United States through New York and had gone to Miami to make purchases of some sort and was then returning to New York to head back to Colombia. [A. 47-48, 65, 68]. After explaining the purpose of the interdiction unit, Officer Pena asked Mr. xxxxxxx directly whether he had any guns or contraband and then asked whether the police could search his bags. [A. 65-66]. She did not advise him that he did not have to answer whether he was carrying any contraband. [A. 68]. Indeed, at no time did she advise him that he did not have to answer her questions. [A. 68-69]. Likewise, at no time before a police dog subsequently "alerted" to the stereo box did she advise Mr. xxxxxxx that he did not have to speak with her. [A. 69].

Officer Pena learned that Mr. xxxxxxx had a Florida driver's license. [A. 47-48]. She explained what the Interdiction Unit was and asked him if he had any baggage. [A. 48]. Since there was no baggage in the roomette, and Mr. xxxxxxx indicated that he had baggage, Officer Pena inquired where it was. [A. 48]. Mr. xxxxxxx responded that it was in the front of the car in the entranceway. [A. 48]. When Officer Pena sought permission to search the luggage, without having told Mr. xxxxxxx that he did not have to agree to it, [A. 69], Mr. xxxxxxx agreed and came out of the roomette and showed her where the baggage was. [A. 48]. Mr. xxxxxxx also pulled the baggage out for her. [A. 48]. Officer Pena described Mr. xxxxxxx' manner as "very cooperative" and "very polite." [A. 48].

Mr. xxxxxxx' luggage consisted of a suitcase and a stereo carton. [A. 48]. Detectives Centrella and Huffman joined Officer Pena and Detective Hanson at the front of the car where Mr. xxxxxxx' baggage was. [A. 66]. Officer Pena opened the suitcase and discovered a lot of small boxes inside it. [A. 48]. Officer Pena asked Mr. xxxxxxx for permission to have a narcotics dog sniff of the baggage and the box. [A.. 48]. Mr. xxxxxxx agreed with that request, according to Officer Pena's testimony. [A. 49]. The suitcase and the box were taken off the train onto the platform for the dog to sniff them. [A. 49-50]. Initially the dog did not "alert" to the stereo box, but then Officer Pena opened the stereo box, nonetheless, and Mr. xxxxxxx "showed a lot of interest in it." [A. 50, 70]. Based upon Mr. xxxxxxx' "interest," the police had the dog sniff the box a second time. [A. 50]. Officer Pena learned that there were narcotics in Mr. xxxxxxx' baggage after the second sniff the stereo box. [A. 49-50]. After the dog had "alerted" to the stereo box, the police searched it, finding a stereo inside and shaking the speakers. [A. 49-51, 70]. Upon hearing a rattling noise in the speakers, the police opened the speakers and within the speakers they found two wallets within the lining of which was heroin. [A. 49-51]. Detective Centrella had taken the two wallets and felt that there was something inside them, thereby causing him to check the lining of the wallets. [A. 51]. Mr. xxxxxxx was not asked, however, whether he would give consent for the wallet(s) to be opened. [A. 69]. Likewise, the dog never sniffed the wallet separately from the stereo boxes. [A. 69-70].

According to Officer Pena's testimony, Mr. xxxxxxx never said that he no longer wanted the police to search his luggage or the stereo box. [A. 51]. She further testified that Mr. xxxxxxx was not threatened and that no police officer displayed his or her weapon during the encounter. [A. 51]. Officer Pena also stated that prior to the discovery of the heroin, Mr. xxxxxxx was not physically restrained. [A. 51]. Officer Pena claimed that she advised Mr. xxxxxxx of his rights in Spanish on the scene from memory and then subsequently from the "PD 47" (rights card), and that he agreed to speak with her. [A. 51-52]. He executed the "PD 47" (rights card) at the police station after he had been arrested and handcuffed. [A. 70-71].

Mr. xxxxxxx having indicated that he would be willing to answer questions, several hours later, in an interview room, Officer Pena questioned him about the heroin found in the wallets and he stated that he did not know it was heroin, but rather thought it was cocaine. [A. 53, 71]. He made additional incriminating statements. [A. 54-55]. Officer Pena testified that Mr. xxxxxxx never indicated that he wanted the questioning to cease nor that he wanted a lawyer. [A. 55].

2. The Defense Evidence: Carlos xxxxxxx' Testimony

Mr. xxxxxxx testified at the motions hearing that he was 45 years old and was born in Bogota, Colombia, where he lived most of his life. [A. 72]. He had a total of six years of education. [A. 72-73]. He had never been arrested anywhere before. [A. 73]. He testified that from his experience in Colombia, he had an image of the police as being "brutal." [A. 73]. The Colombian police beat suspects to force them to say whatever the police wanted them to say. [A. 73]. He had a similar impression of the police in the United States based upon what he had observed in Miami and New York.⁽¹⁾ [A. 73-74].⁽²⁾ In addition, he testified, the episode in Los Angeles (presumably the Rodney King incident) as well as things he had seen on the news and in the media and movies contributed to his impression of the police in the United States. [A. 74, 87-89]. On cross-examination, Mr. xxxxxxx conceded that not every experience he had had with the police in the United States was untoward and that he himself had not been hit by any police officer in the United States. [A. 89-90]. He did testify, however, that the police officer who grabbed him on the day of his arrest in the instant case was threatening to him. [A. 90]. Moreover, notwithstanding that the police who boarded the train had not threatened Mr. xxxxxxx or shown him their weapons, he did state that he was afraid of them. [A. 90]. The prosecutor's effort to impeach Mr. xxxxxxx with his knowledge that if he prevailed on the suppression motion, he would "go free" was not successful, since Mr. xxxxxxx testified that he did not know what would happen if the trial court granted the suppression motion. [A. 91].

As to his arrest, Mr. xxxxxxx testified that he came to Washington by train from Miami. [A. 75]. He was in a roomette on the train when a female police officer accompanied by two other police officers approached him and explained that they were investigating narcotics. [A. 75, 83]. The female police officer showed him her badge and that he assumed that she and the other officers had weapons. [A. 75-76]. He believed that he was not free to leave the roomette because the officers were at the door and that had he tried to do so, they would have hit him. [A. 77]. Mr. xxxxxxx was not advised that he could refuse to answer the officers' questions and, he testified, he did not think he could refuse to answer their questions because of his deference to authority.⁽³⁾ [A. 77, 83] He felt compelled to answer the officers' questions about where his luggage was. [A. 78]. When Mr. xxxxxxx left the roomette he was accompanied by at least three police officers. [A. 79-80]. He "felt like a prey that had been caught" and he felt very nervous. [A. 80]. He did not feel free to leave at that point based on the number of police officers with him. [A. 80].

Mr. xxxxxxx admitted that he had given the police permission to search his luggage, but he asserted that he was not told that he could decline to allow them to search his luggage, and further, that he felt constrained to give them permission to search his luggage based upon his respect for authority. [A. 78]. Moreover, he stated that even if he had declined to give his permission for the police to search his luggage, "they would have searched it anyway." [A. 78].

Mr. xxxxxxx testified that he was on the platform standing next to the train when the police found the drugs and that when they found him, they grabbed him and pushed him up against the train and searched him. [A. 79]. There were a number of police officers there and that he thought that they were going to start hitting him. [A. 79].

Once Mr. xxxxxxx was back at the police station, he was advised of his rights and that he did not have to speak with Officer Pena, that what he said could be used against him and that he had the right to an attorney. [A. 83-84]. He testified that he was confused at the time he signed the rights card. [A. 85]. He had been warned prior to boarding the train that a dog might search for the drugs but that the dog would not be able to find the drugs. [A. 86]. The person who had advised Mr. xxxxxxx about the dog had not said anything to him about whether he had to speak with the police, although he had warned him that the police might stop him. [A. 86-87].

Mr. xxxxxxx testified that he had not seen the police advise suspects of their rights on television, although he had seen people on television sue the police if they did something wrong. [A. 87-88]. He indicated, however, that he did not know the laws in the United States. [A. 88]. In Colombia, however, Mr. xxxxxxx testified, the police are "always right." [A. 88].

3. The District Court's Ruling

The district court denied the motion to suppress orally in open court on January 4, 1993, and followed the oral ruling with a written memorandum on January 6, 1993, which closed with the conclusion that "Mr. xxxxxxx's consent was voluntary." [A. 135]. In its written memorandum, the court stated that the "principal issue raised by [Mr. xxxxxxx' case was] whether [Mr. xxxxxxx] consented freely and voluntarily to the search." [A-131]⁽⁴⁾ Amending that issue further in its written memorandum, the district court stated that "the question presented involves initially whether Mr. xxxxxxx' experience under other circumstances, mainly in Colombia, can be taken into account in deciding whether his consent was voluntary." [A. 132]. The court orally deemed the circumstances of Mr. xxxxxxx' case to present "a mental attitude case." [A. 92].

The court framed the question as one involving the extent to which "the police [are] required to interrogate an individual like [Mr. xxxxxxx] to determine whether ... given his particular circumstances he is acting as a reasonable man should." [A. 114]. The district court ruled that such a requirement would place an undue burden on the police and noted Mr. xxxxxxx' failure to advise the police of his fear of them. [A. 114]. It ruled that the government had met its burden because a suspect who contends that his "acquiescence to authority" was born of a fear of the police is obligated to convey to the very people he fears that he is afraid. [A. 1114-115]. Terming Mr. xxxxxxx' permission to the police to search his luggage as "acquiescence to authority," the district court found that it was born of Mr. xxxxxxx' "hope[ ] that the drugs would not be discovered. [A. 114]. Significantly, the court suggested that it might have ruled otherwise had Mr. xxxxxxx been an individual "who reflected right from the outset either extreme drunkenness perhaps or a mental condition that spoke loudly to the fact that [he] didn't know what the confrontation was all about." [A. 115].

The district court appears to have deemed determinative Mr. xxxxxxx' failure to communicate his concerns to the police. See A. 133] ("He never indicated these concerns to the police."). In pertinent part the court noted that "Mr. xxxxxxx's state of mind [did] not necessarily defeat the government's proof of the voluntariness of his consent." [A. 133]. It stated:

The police in this case had no way of knowing of Mr. xxxxxxx's fears about their intentions to coerce him. He cooperated fully with the police, taking them to where he placed his luggage. He did not appear distraught by the encounter. Mr. xxxxxxx in no way indicated his fear of the police. There were no communication difficulties, as the officer who questioned Mr. xxxxxxx spoke fluent Spanish. There is no evidence of any conduct, words, or other indications from Mr. xxxxxxx that he was not offering his voluntary consent to the search. Only a detailed inquiry into his background, which was beyond the ability of the police on the scene, would have revealed the basis for his fears of the police. Considering the information available to the police at the time of the encounter, Mr. xxxxxxx made a voluntary choice to cooperate and go through the search process, hoping that his well-concealed drugs would not be discovered and that his cooperation with the police would place him in good stead. Mr. xxxxxxx's protests at the court hearing that he felt he had no choice other than to cooperate, though believable and reasonable under his particular circumstances, cannot defeat the government's proof that there was no coercion present to taint [Mr. xxxxxxx's] cooperation with them and apparent consent to the search.

[A. 134].

As to the credibility of the witnesses, the district court found that Mr. xxxxxxx had "testified truthfully." [A. 113-114]. Likewise, in its written memorandum the trial court made the factual finding that "[t]he officers testified truthfully at the hearing" and "accepted" their testimony. [A. 133]. Additionally, however, it found as fact that "Mr. xxxxxxx also testified truthfully, and his testimony [was] accepted as well." [A. 133].

a. Objective Factors Discussed

Crediting Officer Pena's testimony, in its oral ruling the trial court deemed determinative the absence of any evidence that Mr. xxxxxxx was "subjected in any way to any external pressure or compulsion." [A. 113]. See also A. 133 (concluding that there was "no evidence that Mr. xxxxxxx was subjected to any external pressure or compulsion").

With respect to the police conduct, as matters of fact in its memorandum the trial court found

The police, aided by an Amtrak policeman, all dressed in plainclothes, went to the roomette while the train made its customary stop in Washington on September 30, 1992. Amtrak had noted, among other things, the late purchase of a ticket for cash and a defective call-back number, which aroused suspicion of drug trafficking. A police officer fluent in Spanish conducted the usual interdiction questioning, explaining that she and her colleagues were police interested in preventing drug trafficking. Mr. xxxxxxx, a mature 45-year-old businessman, fully cooperated after denying he had drugs. He led the officers to his luggage, consisting of a suitcase and two boxes, which was too bulky for the roomette and then went with the officers without protest to the platform where the search took place and other officers with a dog were standing. Initially the dog failed to alert when the suitcase was opened. After further searching of the boxes containing a stereo and parts, two wallets were found. The dog then positively alerted and heroin was found in each wallet. Mr. xxxxxxx was then arrested. Throughout this entire episode, the police were mild and considerate, displayed no weapons, and neither by actions nor words threatened Mr. xxxxxxx. Mr. xxxxxxx never revoked his consent or tried to interfere.

[A. 130-131].

With respect to the police, it further found When the luggage was being opened on the platform, [Mr. xxxxxxx] was surrounded by at least six policemen and a dog. On the train, three officers stood in the narrow aisle while questioning him at the roomette door. At all times, some police were within an arm's length of him.

[A. 133]. It had observed during the motions hearing that that "everybody knows that the police have guns." [A. 96].

b. Subjective Factors

Notwithstanding its findings of fact as to the police conduct, with respect to Mr. xxxxxxx, in its ruling from the bench, the trial court observed:

There was a fear in this man to some degree from his experience that certainly where he came from he was dealing with a situation which the police are fairly insistent and up here there are good police and bad police and he's seen some bad ones on television and other places. His own experiences have not been dramatically troublesome.

[A. 96-97]. The court further questioned whether Mr. xxxxxxx felt that he was free to leave when he was "surrounded by, according to the testimony, five to six police and a dog standing out of the train with a dog alerted and he knows that, as he put it, they've caught their prey." [A. 98-99].

In its written memorandum the court found as a matter of fact that Mr. xxxxxxx "hesitated to refuse police requests because of his experience with police in Colombia and some limited information obtained in this country during several prior visits concerning police conduct." [A. 132]. The trial court also found as matters of fact that Mr. xxxxxxx' knowledge of English was slight and that his education was limited. [A. 132-134].

The court also found as fact that Mr. xxxxxxx "knew he was taking some drugs in his luggage and that it might be searched between Miami and New York City." [A. 132]. It further credited Mr. xxxxxxx' testimony that "[h]e knew that if he resisted police in Colombia he would be hit and beaten[; i]t was part of that culture and he had seen it happen." [A. 132]. With respect to Mr. xxxxxxx, the trial court also found that:

He felt the best and safest thing to do was comply [with the police requests].

During several trips to Miami and New York on his spare parts business, United State police had been courteous and non-threatening, both at the time of the present arrest and earlier during a minor traffic infraction in New York City. On the other hand, he believed there were good and bad police in this country, having seen the Rodney King footage and having witnessed a policeman breaking someone's arm, another policeman pistol-whipping a suspect in New York, and still another policeman hit a man in the stomach in Miami.

Mr. xxxxxxx has no criminal record in Colombia or here. ... He cooperated with police throughout the encounter... The thought of leaving never even entered Mr. xxxxxxx' mind. He acquiesced in all police requests fearful that he would be hurt if he refused. He was never advised that he could refuse. He felt he had no choice but to submit based on his experience although there was no action by members of the interdiction team that was threatening or abusive in any way. He never indicated these concerns to the police.

[A. 132-133].

SUMMARY OF ARGUMENT

The internal inconsistencies in the trial court's ruling rendered its decision clearly erroneous. After hearing the testimony of Mr. xxxxxxx, as well as the police officer, the court found as fact that Mr. xxxxxxx agreed to a search of his luggage out of fear, believing that he had no choice but to do so. As a matter of law, this fact-finding required the court to conclude that Mr. xxxxxxx' apparent consent to the search was not voluntary, and that the fruits of the search were unconstitutionally seized. The court's further fact-findings--that the police did not act in a coercive manner and that Mr. xxxxxxx did not communicate his true mental state to the officers--were legally of no consequence. As this Court recognized in United States v. Hall, 969 F.2d 1102, 1106-1108 n. 6 (D.C. Cir.), cert. denied, U.S. , 113 S.Ct. 481 (1992), the test for the existence of consent to search is a subjective one; no significant authority exists for requiring an accused who has proved a subjective lack of consent to prove, as well, that the police overreached in seeking the purported consent. Likewise, no authority supports a requirement of proof that the accused gave police reason to know that his or her apparent consent was tainted by some vulnerability. For a warrantless search to be justified by consent, the consent must be found to have been actual, not merely ostensible. In finding that despite Mr. xxxxxxx' lack of actual, subjective consent, his apparently "voluntary" consent justified the search, the court clearly erred.

ARGUMENT

I. Standard Of Review

"[V]oluntariness is a question of fact," and accordingly, an appellate court reviews a trial court's conclusion that consent was voluntary under the "clearly erroneous" standard. United States v. Hall, 969 F.2d at 1007), citing, United States v. Battista, 876 F.2d 201, 207 (D.C. Cir. 1989). See also United States v. Rodney, 956 F.2d 295, 297 (D.C. Cir. 1992), citing, United States v. Battista, supra; United States v. Lloyd, 868 F.2d 447, 451 (D.C. Cir. 1989).

The district court should have suppressed the evidence in this case after it had found that Mr. xxxxxxx' permission to search the luggage was a product of his fear of the police. In United States v. Hall, supra, this Court held that "the voluntariness inquiry turns not on whether a 'reasonable' person in the defendant's position would have felt compelled to consent to a police officer's request to search, but rather, on whether the accused [him]self actually felt compelled to consent." 969 F.2d at 1106 (emphasis in original), citing United States v. Lewis, 921 F.2d 1294, 1301 (D.C. Cir. 1990). Thus, the district court's assessment that the resolution of the motion turned upon how a reasonable innocent person would have felt in Mr. xxxxxxx' circumstances, [A. 105], was incorrect.

The Fourth Amendment to the Constitution makes warrantless searches presumptively unreasonable unless they fall within a recognized exception to the warrant requirement. Schneckloth v. Bustamonte, 412 U.S. 218, 219 (1973) (citations omitted). Consent is one such recognized exception, id. and 412 U.S. at 222, and it is the one upon which the trial court relied to deny Mr. xxxxxxx' suppression motion. See A. 131 ("The principal issue raised by this motion under the circumstances revealed by the record is whether the defendant consented freely and voluntarily to the search."). The government bore the burden of proving both that consent was given and that it was freely and voluntarily given. Bumper v. North Carolina, 391 U.S. 543, 548 (1968).

An assessment of whether there was valid consent is based upon an evaluation of the totality of the circumstances. Schneckloth, 412 U.S. at 227. See also United States v. Lloyd, 868 F.2d at 451. As this Court recognized in United States v. Hall, supra, the issue is not whether a reasonable person would have felt compelled to give consent, but whether the particular person before the court felt so compelled. Judge Gessell found that Mr. xxxxxxx did feel compelled to permit the police to search his luggage; nevertheless, he ruled that the government had sustained its burden of proving voluntary consent, because the police had not engaged in any conduct to make Mr. xxxxxxx feel compelled (and, seemingly, also because Mr. xxxxxxx had failed to communicate his fear to the police). This internally inconsistent and legally erroneous conclusion cannot stand.

In Florida v. Royer, 460 U.S. 491 (1983), the Supreme Court recognized that "where the validity of a search rests on consent, the State has the burden of proving, by a preponderance of the evidence, that the necessary consent was freely and voluntarily given, a burden that is not satisfied by showing a mere submission to a claim of lawful authority." 460 U.S. at 497 (citations omitted). See also United States v. Jones, 641 F.2d 425, 429 (6th Cir. 1981) ("the mere expression of approval to [a] search" is insufficient to constitute a valid consent); Higgins v. United States, 209 F.2d 819, 820 (D.C. Cir. 1954) (holding that a suspect who allowed police to enter his room and "look around," resulting in the discovery of marijuana, had not consented; but rather, merely had acquiesced); United States v. Judd, 190 F.2d 649, 651 (D.C. Cir. 1951) (holding that an arrestee's statement to the police that he "had nothing to conceal or hide" and his permission to the police to "go out to [his home]" after the police told him that they were looking for tools and a pair of shoes relevant to a burglary, did not constitute a consent to the search and recognizing that "[n]on-resistance to the orders or suggestions of the police is not infrequent ...; true consent, free of fear or pressure, is not so readily to be found"). Other cases have also recognized that acquiescence to authority is an insufficient basis upon which to justify a search. Bumper v. North Carolina, 391 U.S. at 548-49. Cf. Buffkins v. City of Omaha, Douglas County Nebraska, 922 F.2d 465 (8th Cir. 1990), cert. denied, U.S. , 112 S.Ct. 273 (1991); United States v. Berry, 670 F.2d 583, 596 (5th Cir. 1982); United States v. Anile, 352 F. Supp. 14, 18 (N.D.W.Va. 1973).⁽⁵⁾ Cf. Cipres v. United States, 343 F.2d 95 (9th Cir. 1965), cert. denied, 385 U.S. 826 (1966) (verbal assent to search of luggage not sufficient to establish consent, and permission to search bag "'obtained under color of the badge'" was "presumptively coerced") (citations omitted) cited in United States v. Kelly, 913 F.2d 261, 266-67 (6th Cir. 1990).

Judge Gessell found fully credible Mr. xxxxxxx' testimony regarding his fear of the police and his feeling that he had to give the police permission to search his luggage based upon his respect for authority. [A. 78]. Indeed, the court found that Mr. xxxxxxx permitted the search to occur because he was afraid of what would happen if he refused to permit it. A. 133 ("he acquiesced in all police requests fearful that he would be hurt if he refused"). This finding required the conclusion that Mr. xxxxxxx merely acquiesced to authority, rather than consenting to a search.

In its oral ruling the district court implicitly found that Mr. xxxxxxx had not consented to the search when it characterized his testimony as relating to his "acquiescence to authority." [A. 114-115]. Subsequently, in its written memorandum the district court found that:

He acquiesced in all police requests fearful that he would be hurt if he refused. He was never advised that he could refuse. He felt he had no choice but to submit based on his experience although there was no action by members of the interdiction team that was threatening or abusive in any way.

[A. 132-133] (emphasis supplied). The district court also found that Mr. xxxxxxx "hesitated to refuse police requests. [A. 132]. Thus, the district court's ruling that Mr. xxxxxxx' consent was voluntary was clearly erroneous because it was "internally inconsistent." See Anderson v. City of Bessemer City, N.C., 470 U.S. 564, 575 (1985), cited in Carter v. Bennett, 840 F.2d 63, 67 (D.C. Cir. 1988).

As this Court has often recognized, and recently reaffirmed, "'whether as consent to a search was in fact "voluntary" or was the product of duress or coercion, express or implied, is a question of fact to be determined from the totality of all the circumstances.'" United States v. Hodge, 19 F.3d 51, 52 (D.C. Cir. 1994), citing, Schneckloth v. Bustamonte, 412 U.S. at 227 (1973). See also United States v. Hall, 969 F.2d at 1107; United States v. Rodney, 956 F.2d at 297. The factors to be examined in determining the totality of the circumstances include, but are not limited to:

the youth of the accused; his lack of education; or his low intelligence; the lack of any advice to the accused of his constitutional rights; the length of detention; the repeated and prolonged nature of the questioning; and the use of physical punishment such as the deprivation of food or sleep.

United States v. Rodney, 956 F.2d at 297, citing, Schneckloth v. Bustamonte, 412 U.S. at 226. See also United States v. Hall, 969 F.2d at 1107, citing, United States v. Lloyd, 868 F.2d at 451. The Supreme Court has found "particularly worth noting" whether the police "specifically advise[ the accused] that he ha[s] the right to refuse consent." Florida v. Bostick, U.S. , 111 S.Ct. 2382, 2385 (1991).

In Lewis, this Court held that the trial court's failure to analyze the facts before it using "the detail suggested in Schneckloth [v. Bustamonte, 412 U.S. 218 (1973)]," precluded appellate review of "why [that] particular defendant, ..., felt compelled to comply with the officer's request." 921 F.2d at 1294.⁽⁶⁾ In contrast, in this case, the district court analyzed Mr. xxxxxxx' situation using several factors deemed relevant by the Supreme Court in Schneckloth, and subsequently endorsed by the law of this Circuit. See e.g. United States v. Lloyd, 868 F.2d at 451-452. Hence, this court easily can determine that the district court's conclusion was erroneous.

The accused's cultural background and alienage have also been recognized as relevant factors in determining the voluntariness of a suspect's consent to search. Cf. United States v. Recalde, 761 F.2d 1448, 1454 (10th Cir. 1985) ("undisputed testimony" regarding accused's "upbringing and experiences" in foreign country which "had instilled in him an acquiescence to police authority" was "certainly relevant to the issue of coercion" to consent). See also United States v. Gallegos-Zapata, 630 F.Supp. 665 (D. Mass. 1986).

In Gallegos-Zapata the trial court granted a motion to suppress contraband seized from an accused in an airport, and holding that the government had failed to prove voluntary consent, and instead likely "merely submitted to what must have appeared to him to be a 'claim of lawful authority.'" 630 F.Supp at 675 (emphasis supplied). That court's focus on how the suspect perceived the police is consistent with this Court's holding in United States v. Hall, supra, regarding whether the particular suspect, rather than a reasonable person, felt compelled to give the police permission for a search. In language very relevant to Mr. xxxxxxx' case, the court found among the indicators that the suspect's consent was not voluntarily given in Gallegos-Zapata that the suspect "had only recently arrived in the United States and so probably lacked familiarity with his rights under the United States Constitution, including his right to insist that the officers obtain a search warrant." Id. See also LaDuke v. Nelson, 762 F.2d 1318, 1329 (9th Cir. 1985) (upholding trial court's determination that consent to search was not voluntary when, inter alia, law enforcement agents failed to inform suspects of their right to refuse search, inherent fear of law enforcement agents based upon suspects' Mexican heritage, and the limited lingual and educational background of the persons searched). These same considerations, which the district court found existed here, rendered Mr. xxxxxxx' consent invalid.

As to the "objective factors," Hall, 969 F.2d at 1108, in both its oral ruling and its written memorandum, the trial court observed, "[w]hen the luggage was being opened on the platform, [Mr. xxxxxxx] was surrounded by at least six policemen and a dog. On the train, three officers stood in the narrow aisle while questioning him at the roomette door. At all times, some police were within an arm's length of him." [A. 133]. See also [A. 98-99] (Mr. xxxxxxx was "surrounded by, according to the testimony, five to six police and a dog standing out of the train with a dog alerted and he knows that, as he put it, they've caught their prey"). Likewise, the court also found that Mr. xxxxxxx was never advised that he did not have to consent to the search. [A. 133]. With regard to Mr. xxxxxxx' "subjective frame of mind," Hall, 969 F.2d at 1107, the district court found that he "hesitated to refuse police requests because of his experience with police in Colombia and some limited information obtained in this country..." [A. 132]. This finding meant that Mr. xxxxxxx' apparent consent was not truly voluntary, and it should have been dispositive.

The district court erroneously found that the government had met its burden of proving voluntary consent by a preponderance of the evidence despite the fact that it found that Mr. xxxxxxx agreed to a search of his luggage out of fear. Consent produced by fear is not voluntary.⁽⁷⁾

There is a fundamental difference between true consent and an inability to refuse police requests that is based upon fear. The latter amounts to mere acquiescence in a situation in which one feels powerless to refuse or where one feels it would be dangerous or futile to refuse. Indeed, Mr. xxxxxxx testified that he believed that had he refused to permit the police to search his luggage, "they would have searched it anyway." [A. 78].

The trial court erred in ruling that Mr. xxxxxxx had a duty to communicate or convey his fright to the police officers, in order to prevail upon a motion to suppress based upon involuntary consent. It further appeared to require, mistakenly, that the police take some action which was coercive, in order to support a finding that any consent to search was involuntary. Neither of those matters are conditions precedent to a finding of involuntary consent, and therefore the trial court's ruling should be reversed. In its written memorandum the court made repeated references to Mr. xxxxxxx' fear of the police. See e.g. A. 134 ("The police in this case had no way of knowing of Mr. xxxxxxx's fears about their intentions to coerce him ... Mr. xxxxxxx in no way indicated his fear...) (emphasis supplied). The district court's written memorandum clearly assumed, incorrectly, that the police had to be aware of Mr. xxxxxxx' fear. See A. 134 ("the police in this case had no way of knowing ...; [h]e did not appear distraught..; Mr. xxxxxxx in no way indicated his fear ... ; [t]here is no evidence of any conduct, words or other indications from Mr. xxxxxxx that he was not offering his voluntary consent to the search...; [c]onsidering the information available to the police") (emphasis supplied).

In Hall⁽⁸⁾ this Court specifically declined to impose a requirement that the police be aware of the accused's "vulnerability in eliciting a consent to search." Hall, 969 F.2d at 1108 n. 6. This Court observed that the requirement of Colorado v. Connelly, 479 U.S. 157 (1986), that the police knowingly take advantage of a suspect's vulnerability before a confession is held to have been made involuntarily "has ... not yet been generally applied to consensual searches." Id. Indeed, the illogic of requiring a suspect to communicate his/her fear of the police is two-fold.

First, there are as many ways of conveying or manifesting fear as there are people who are fearful. Thus, one person's palms might sweat, while another might develop a stutter, while a third might respond by providing the police with the very permission to search which they seek in order to appear cooperative and thereby end an uncomfortable encounter as quickly as possible. Moreover, some of these manifestations, such as a stutter, might be readily discernible to the police, while others, such as sweaty palms or dry mouth, or an eagerness to please the police and cooperate with them, would not be discernible. Accordingly, the trial court's implicit requirement that Mr. xxxxxxx have conveyed his fear to the police did not comport with common sense.

Second, it was unreasonable for the trial court to expect the very fear which caused Mr. xxxxxxx to permit the police to search his luggage, to have allowed him to have been courageous enough to explain his fear of the police to those precise individuals who are making him afraid. Thus, the trial court's implicit requirement that Mr. xxxxxxx have communicated his fear to the police was not a relevant factor in determining the voluntariness of his consent.

In its memorandum the district court also cited United States v. Lloyd, supra and United States v. Wood, 981 F.2d 536 (D.C. Cir. 1992), for the proposition that the totality of the circumstances had to be considered in determining the validity of Mr. xxxxxxx' consent and that the totality included Mr. xxxxxxx' subjective state of mind. Unlike Mr. xxxxxxx, the suspect in Lloyd never testified that his consent was a product of his fear of the police; rather he stated that he permitted the police to search the bag because it belonged to someone else and "he did not know it contained drugs." 868 F.2d at 451. Thus, the facts of Lloyd are distinguishable from those in Mr. xxxxxxx' case.

In Wood this Court did not decide whether the accused had consented to a search. The issue in Wood was whether the accused had been seized. This Court engaged in an analysis of the actions of the police and examined those under the applicable reasonable person standard regarding seizure, i.e. "' ... if, in view of all the circumstances surrounding the incident, a reasonable person would have believed that he was not free to leave.'" 981 F.2d at 539, citing, United States v. Mendenhall, 446 U.S. 544, 554 (1980). Thus, the district court's reliance on Wood was misplaced because the legal question at issue and the applicable legal standard in that case differed from those at issue in Mr. xxxxxxx' case.

CONCLUSION

Because Mr. xxxxxxx' conviction rests upon evidence which should have been suppressed as having been obtained in violation of the Fourth Amendment, his conviction must be reversed.

Respectfully submitted,

Santha Sonenberg

Assistant Federal Public Defender

On Behalf of Carlos Alberto xxxxxxx

625 Indiana Avenue, N.W.

Washington, D.C. 20004

(202) 208-7500

CERTIFICATION OF BRIEF LENGTH

Pursuant to D.C. Circuit Rule 28(d)(1), undersigned counsel hereby certifies that this brief includes no more than 12,500 words.

Santha Sonenberg

CERTIFICATE OF SERVICE

This is to certify that on this day of June, 1994, two copies of the foregoing Brief for Appellant and one copy of the accompanying Appendix were personally served upon the Office of the United States Attorney, 555 Fourth Street, N.W., Washington, D.C. 20001 by hand-delivery.

Santha Sonenberg

1. The district court found that Mr. xxxxxxx' impressions of the police were "what everybody knows." [A. 83].

2. Mr. xxxxxxx testified that he had been to the United States five or ten times, staying anywhere between two weeks and two months each time, bringing spare parts back to Columbia. [A. 74, 80-81, 83].

3. Mr. xxxxxxx testified that he spoke with Officer Pena in Spanish and has no difficulty understanding her. [A. 83].

4. Orally the court indicated orally that the sole issue raised by the motion to suppress was "whether under the circumstances indicated [the] situation [was] so fraught with concerns about the police and threats that many people feel in [sic] police that [Mr. xxxxxxx] didn't feel free to leave." [A. 49].

5. Many factors go into the determination of valid consent. In Bustamonte, in justifying searches that absent consent would violate the Fourth Amendment, the Court acknowledged that, "consent searches will normally occur on a person's own familiar territory". 412 U.S. at 247. Since Mr. xxxxxxx was not in a place familiar to him, this factor militated against a finding that there was any valid consent in his case.

6. In Lewis the trial court had based its ruling that the accused's consent was involuntarily "on [its] perception of how bus passengers would generally respond to the kind of questioning" at issue in interdiction cases. 921 F.2d at 1301 (emphasis supplied).

7. See Schneckloth v. Bustamonte, 412 U.S. at 234, citing Bumper v. North Carolina, 391 U.S. at 550.

8. The trial court cited this Court's decision in Hall at page two of its January 6, 1993, Memorandum.