Oliver v. United States

WAGNER, Before FARRELL NEWMAN, Judges, Senior Associate Judge.

NEWMAN, Judge: Senior (“Oliver”) charged James Oliver intent to possession of cocaine with with trial, distribute; he was con- after bench challenges the trial court’s victed. Oliver suppress pre-trial motion to denial of his pursuant (cocaine) to a seized evidence was unconstitu- search which contends light of his encounter tional. group the same at Union Station with detectives, argues, drug interdiction body in this case consent to the involuntary On the and thus invalid. case, agree we particular facts reverse conviction. therefore 12,1989, Metropolitan Police De- July On Zattau, Donald Ed- partment Detectives Hanson, Curley, and John ward Edward Centrella, Brennan Sergeant John drug assigned to interdiction team were wore Union Station. armed, their plain They clothes. but weapons were concealed be- and handcuffs jackets. neath Oliver arrived Un- their from York. He ion Station train New luggage, walked with hands carried no looking bulge in the crotch When Oliver pockets, and was area. observed drawstring loosen the waist ap- started to right.1 off Zattau to his Detective if I said, you mind do pants, Zattau “do Oliver, badge, proached showed Oliver his hands dropped that?”5 Oliver and asked to talk to Detective Oliver. pants away pulled sides. Zattau Oliver’s right, positioned Hanson himself to Oliver’s jock strap a body, his and from observed away, about fifteen feet and Detective Cen- reached boxer shorts. Zattau worn over trella to Oliver’s rear at about stood strap out a jock pulled and clear into the time, Sergeant At same distance. this plastic bag later determined powder-filled Curley and Detective inter- Brennan were grams 125 of cocaine. Oliver to contain Zat- viewing another individual. Detective arrested. was tau to When proceeded interview Oliver.2 drugs, carrying weapons, if he was hearing, response in suppression At the contraband, replied that he other Oliver regarding questions counsel’s whether to tes- not. Based on Zattau’s Detective detectives, free to Oli- Oliver felt leave Oliver timony, the trial found that he not free to leave ver testified pat-down During to a search.3 consented Zattau’s ini- from the moment Detective pat-down, Detective Zattau felt a approach, because that detective had tial “hard, lumpy substance in crotch [Oliver’s] stopped previous on a occasion. Ac- Oliver was, asked what it Oliver area.” When Oliver, cording months before to one to two bag. replied part colostomy it was a leading instant encounter to convic- up his an Oliver raised shirt and revealed approached tion, companion a he and were naval, opening near his a rub- from which Zattau at the taxi stand in by Detective ber extended Detective tube downward.4 questioning Station. The front of Union colostomy bag, see the Zattau asked to substantially similar to the encounter suggested they in continue the search 12,1989. Zattau asked July Detective to nearby. a men’s room into Oliver walked carrying. When Oliver was first, by the men’s room Zattau refused, followed that Oliver replied Zattau Oliver police officers, other stood leave, two who must luggage that his re- but by the inside the agreed behind Oliver door. Once the search of the main. Oliver to room, pulled began up- drugs Oliver the tube Oliver bag. men’s No were found. he had again away, Zattau asked but Zattau said to wards. about to walk manner, doing suspicious 1.Drug suspicious pay special atten- a interdiction detectives station in behavior, things.” Id. type especially when the tion to observed individual disembarks from a train or questions. interview consisted of several 2. The bus from New York. inquired Oliver’s recent Zattau into Detective train, Washing- for his visit arrival reasons Winston, example, in United v. 282 For States produced place of Oliver and his residence. ton 96, 101, 112, (1989), U.S.App.D.C. 892 117 F.2d upon request. train ticket 85, 1383, U.S.App.D.C. aff’d, cert. 283 896 F.2d 830, denied, 91, U.S. 111 S.Ct. 112 L.Ed.2d 498 account, Contrary Oliver to Detective Zattau’s (1990), approached a man who 63 not seek testified that Detective Zattau very Grey pace through at a slow walked pat-down beginning search. before consent terminal, hound-Trailways looking bus around explained bulge Zattau felt was Oliver searching ap he were someone. The as if for bag. Washington colostomy He came to for U.S.App. pellants Lloyd, 276 gunshot wound medical treatment of a further giving 447, (1989) D.C. 449 colostomy bag. to the need for the rise leaving “Night train from observed Owl" York, walking to the center of the Union New suppression hearing, Detective Zattau 5. At the around, concourse, stopping, looking Station expressed Oliver carried a his concern that seating lounging returning to a area. After weapon pants, and for that concealed minutes, twenty they to the taxi walked for pants proceeded to Oliver’s reach for reason stand. safety con- The trial court found that himself. 1348, Guadalupe Ohio, v. United justify Terry v. did not a frisk under cerns (D.C.1991),Sergeant (1968). n. 1 Brennan testified U.S. 88 S.Ct. 20 L.Ed.2d drug "ac- interdiction detectives watch for also that the detectives The trial court found in, people coming splitting up, suspicion such as that Oliver carried tivities lacked articulable going right telephone, looking drugs around the has committed crime. dog also or have the the interviewee search Oliver’s — Bostick, at -, companion, impatient U.S. 111 S.Ct. sniff him. Oliver’s & leave, 2386; Immigration Naturalization encouraged allow the at 216-17, drugs Delgado, Detective Service search. No were found. U.S. suppression Hanson also testified 80 L.Ed.2d 247 hearing, person, of Oliver’s and corroborated much is whether reasonable test encounter, except crime, any light objec account innocent questioning circumstances, that he stated the and search surrounding would tive of Oliver been done Detective Cur- liberty was “at have believed ley. police presence go ignore the about — Bostick, supra, business.” testimo- trial court credited Oliver’s Michigan v. 2387; Cheste -, 111 S.Ct. at ny regarding previous encounter. Of rnut, 567, 573, 574, 486 108 S.Ct. U.S. decision, key importance judge to our 1975, 1979, 1980, (1988); 565 100 L.Ed.2d First, made found findings. two he that Mendenhall, 446 U.S. 544, United States v. (mistakenly Oliver had in fact but believed 554, —, 1870, 64 L.Ed.2d 497 100 S.Ct. understandably) Zattau that Detective denied, ’g reh Stewart, J.), (1980) (opinion of had person questioned the same who 908, 3051, 448 100 S.Ct. 65 L.Ed.2d U.S. Second, searched him on occasions.6 both protec Amendment 1138 Fourth prior the court found that search of not against unreasonable seizures are tions against Oliver’s had been conducted implicated encounter loses its con until the findings Both in de- will. relevant — Bostick, supra, sensual nature. freely termining whether Oliver consented 2386; Kelly v. at -, United 111 at S.Ct. July 12, body on 1989. De- States, 1282, (D.C.1990). 1286 encounter, spite trial court present found on occasion Oliver sup jurisdiction Recent cases voluntarily pat-down consented to the was not port our conclusion Oliver body the more intrusive search approached seized at moment followed. drug interdiction detectives and on The instant ease turns the is See, Kelly, supra, e.g., questions. consent, properly trial sue as the 1288; Winston, supra note 1, 580 A.2d at simply found. A seizure does not occur 101, F.2d 117. U.S.App.D.C. 282 at 892 at police approach an because officers individ in a He himself consensual discus involved v. Florida questions. ual ask a few sion, from which he was free extricate — 2382, Bostick, U.S. -, -, 111 S.Ct. Kelly, any at moment. 580 himself 2386, (1991); Florida v. 115 L.Ed.2d 389 situation A.2d at 1288. Present Oliver’s 497, 1319, Royer, 460 U.S. 491, 103 S.Ct. negate intimidation or were factors which 1323, (1983) (plurality opin 75 L.Ed.2d 229 coercion.7 ion); v. United Richardson 520 denied, cert. 692, (D.C.), drug interdiction team members A.2d 696 484 U.S. The clothes, 917, (1987); not 267, plain 224 dressed in uniforms. 108 S.Ct. 98 L.Ed.2d Barnes, v. 1040, weapons con- A.2d Their and handcuffs were 496 during (D.C.1985). no time jackets; This is even where cealed beneath 1044-45 so or search the detectives suspicion questioning the officers lack articulable did testimony Notwithstanding same factors are also considered in Detective Hanson’s These Curley questioned evaluating that Detective the voluntariness of consent time, judge Caballero, searched Oliver the first searches. See United States v. 290 similarity appearance noted the between 235, 240, 1292, U.S.App.D.C. 936 F.2d 1297 Zattau, (a) that Hanson and and found Hanson — U.S. -, 943, denied, (1991), cert. 112 S.Ct. occasion, questioning on had done the the first (1992); L.Ed.2d United States Mar 117 113 (b) (though plausi- mistakenly but that Oliver 415, agh, U.S.App.D.C. 282 questioned bly) it been Zattau who believed had 214, denied, cert. 498 U.S. 112 testimony, and however, him. There was also remand, (1990), F.Supp. L.Ed.2d Curley that Zattau and resembled one (D.D.C.1991). another. authority to a show spoke Mere submission weapon. brandish satisfy government’s burden does not conducted in conversational tones and proof. supra, 460 U.S. Royer, polite Though themselves in a manner. 103 S.Ct. at they present, there were four detectives appear Detective Zat- to crowd Oliver. is essen finding A of voluntariness tau testified that the other detectives stood is tially appeal On our review factual. and did not away fifteen feet from Oliver finding that a search trial court’s limited: a path Zattau conducted the block while upheld find is unless such a is consensual Thus, there no Fourth interview. clearly erroneous. United States liberty on appellant’s Amendment intrusion (D.C.1981); Alexander, 428 49-50 privacy laid hands on before States, 381 A.2d v. United Childress cases decided Recent Appeals for the the United States Court concedes, government howev upheld of Columbia Circuit have District er, must, police patted as it that when the bags, body consent to searches of and to down, they pur him for “searched” by drug interdiction searches conducted Amendment, and poses of the Fourth Grey and the local teams at Union Station (as subsequent that intrusion well as the However, hound of terminal. several bus search) requires justification. more invasive specifically opinions those noted the ab Specifically, a search conducted without a factors or circumstances consid sence of is per warrant se unreasonable unless it See, Lloyd, supra note e.g., ered coercive. falls within ex one few established 122, 451; 1, U.S.App.D.C. 276 at 868 F.2d at States, ceptions. 389 Katz v. United U.S. 7, U.S.App.D.C. at Maragh, supra note 282 357, 507, 347, 514, 88 19 L.Ed.2d 576 S.Ct. 258, at (1967). Voluntary consent is such an ex Bustamonte, ception. v. Schneckloth 412 totality from the of determining In 218, 219, 2041, 2044, 93 U.S. S.Ct. 36 to a the whether consent circumstances (1973). L.Ed.2d 854 The voluntariness of voluntary, tak search “account must be is by is scrutiny consent determined careful questions, as subtly en of coercive surrounding of all circumstances the subjective possibly well as the vulnerable 226, search. Id. at 93 at 2047. S.Ct. person the who consents.” state of suspect Whether the acts in his own best 229, Schneckloth, 93 supra, 412 U.S. at is to interest not relevant the determination critical fact estab S.Ct. at 2049. There is a Mendenhall, voluntary of consent. supra, apart lished the case that sets it in instant 559, 100 at 446 U.S. S.Ct. at Consent from Union cases: Oliver’s other Station may given freely be even if the officers of group the same recent encounter with a requesting the search fail to advise sus belief, the trial which pect right to of withhold consent. Id. reasonable, as that the same court credited 558, “Knowledge at 100 at 1879. S.Ct. him questioned and detective had right to prerequisite refuse is not a of a previous occasions. The encounter both consent,” Schneckloth, voluntary supra, began substantially similar as a series of 234, 2051, although 412 U.S. at 93 S.Ct. at questions culminating in a search of both Mendenhall, may “highly it be relevant.” bag person. and of On that Oliver’s 559, 446 at at U.S. 100 S.Ct. 1879. occasion, initially refused to consent Oliver government prov bears the burden bag. of his detective the search preponderance ing voluntary consent free although made Oliver was it clear Bumper of the evidence. North v. Car leave, remain with the must olina, 1788, 391 U.S. 88 S.Ct. having After searched Oliver’s detectives. 1791, (1968); 20 L.Ed.2d 797 bag, only articles of cloth which contained Matlock, ing, pat- 415 U.S. 178 n. 14 detective demanded either 710 concurring WAGNER, Judge, Associate dog sniff of Oliver’s

down or a dissenting part: part Oli- specifically The trial court found that prior searches ver’s consent these disposition majority’s I concur with involuntary, and the searches thus however, respect I question; the seizure were unconstitutional. its determination that fully dissent from concluding trial court erred circumstances, unique In these we here consensual. search involved finding that accept cannot court’s view, findings sup my court’s the trial voluntarily present Oliver consented and, therefore, ported the record should stated, true, judge search. It is as Kelly v. not be disturbed. See United at time to “objected the fact Oliver one States, 1285 580 lug having a search of his justify a a consent which would Whether gage mean that he has necessarily doesn’t question fact voluntary is is a consistently ap to act with that if he’s totality determined from which must be (em conditions” proached under same v. Busta of circumstances. Schneckloth added). necessity mes phasis But of monte, 218, 248-49, 412 conveyed occa sage to him on (1973); Kelly, 580 L.Ed.2d importantly on “the nature sion would bear A.2d at 1285. Since the determination subjective understanding” of fact-based, [his] we question essentially is “ Schneckloth, at rights. supra, 412 U.S. ‘uphold finding the trial must court’s record, we On this S.Ct. such a find was consensual unless a search ” nothing find the effect of can offset Id. clearly erroneous.’ (and found experience claimed (quoting Childress United (D.C.1977)); 17- court) encountering D.C.Code by the to have had of § 305(a)(1989). proposi that Consonant with in circum the same detectives earlier tion, to my opinion, in there is no basis they essentially disregarded stances where ruling. the trial court’s overturn The a his refusal to consent to search. the was relative interval between searches appellant trial found that con- court brief, dispute ly judge the trial did not and search, basing finding its on sented the coer appellant’s prior contention that surrounding appellant’s the circumstances in his mem cive search had remained vivid appellant’s police the and with encounter Thus, re ory. applying the standard of prior a “subjective as result state” findings, we appropriate to factual view drug the interdiction team. experience with and firm convic are “left with the definite Schneckloth, supra, 412 U.S. at See a mistake has been committed.” tion that (in if determining consent at 2049 Gypsum v. United States coerced, “account must be taken Co., S.Ct. 333 U.S. as as subtly police questions, coercive well L.Ed. 746 subjective state possibly the vulnerable consents”). Specifically, person who the appellant pat-down of Because the Detective Zattau’s trial court credited the (as govern- neither to nor the consented he testimony appellant he if that concedes) by articulable supported ment him, speak they conversed could with that lumpy suspicion, discovery of the hard the problem in the drug the thereafter about prod- the in his crotch area was substance District, appellant consented to a and that need illegal search. We therefore uct an found further patdown. The trial court government’s argument the not consider dis- during patdown, the the detective that discovery provid- of that evidence that the appellant’s crotch bulge a which covered to the police for the conduct ed reason colostomy bag, explained was a appellant body in of Oliver’s more intrusive search picked up his appellant that “kind of the men’s room. ” Although it to show what was.... shirt not to appellant indicated that he did want Reversed. Question: right. did he threat- All When to ac- public, be searched in he assented dogs you? it was to call the on When to en companying the officers to the bathroom you. search, your bags or when it was according the the to continue conflicting findings. is court’s While there my bag.2 it Answer: When was issues, having on of these evidence some accepted this the trial court Apparently, credibility con- and resolved the determined reject- events and the particular version flict, foregoing trial court made the the thought explanation that he appellant’s ed supported by findings which are evidence permitted to leave. not be he would the record. I do not understand the fact, that he informed appellant testified up point. disagree to majority to right search he no the officer that encounter,3 and the during the earlier him the critical facts which account for so found. court rejection find- majority’s of the trial court’s circumstances pertain of consent the weighed against appellant The court surrounding appellant’s prior encounter explain why he not walk inability to did drug effect with team its interdiction police in the train away from the while “subjective upon appellant’s understand- station, not have since he that did knew ing” rights. appears to divide of his What The trial court consent to the search. in our perceptions us a difference is obliged to infer from the evidence not issue, findings on trial court’s it, as before conclude on record or upon evidence which the court relied does, appellant’s that majority apparently making them. The trial court found subjec- him encounter left with earlier occasion, appellant on earlier allowed understanding he either had no tive of his of “an luggage because police would right object implied dog always sniff threat that The con- disregard refusal to consent. police luggage” and that the searched by the court trary inferences made trial appellant’s against his will. The reasonable, it from the evidence appel- find to make province court’s within person against Nche, lant’s will that earlier supra note determination. See Rather, ruling con- 2, (credibility occasion. court’s witnesses veys appellant police to allowed to be from their testi- and inferences drawn person suggestion search his at the of determina- mony are trier fact whose for delay.1 plainly companion, order to avoid further unless tion cannot be disturbed evidence). findings. Dur- supports wrong unsupported The record these examination, supported by ing responding findings the redirect court's counsel, clearly erroneous. Ac- appellant tes- not questions of defense record and are uphold them. See cordingly, we should tified as follows: against bag findings pertinent parts was done of trial court’s search 1.The left, having nothing been will and he there as follows: added). (Emphasis discovered. testimony [appellant's] I credit that will with a and that Detective Hanson friend testimony, appellant that had stated In earlier here, approached and him who testified asked dog sniff threatened to have the the officers questions types been same up matter His counsel cleared him. during defense time, Zattau, particular that at I examination, trial court redirect their think it’s consistent from both testimo- version, within its later which is credited the [appellant] was not interested nies province. Nche United See carry- having luggage that he was —his and he was not time searched having interested in questioned appellant as follows: The court proba- think made that known that I it’s officer, correct, you although And told this same bly to find THE COURT: it’s not critical time, search upon implied dog he couldn’t this detective an threat that that; and, right always your bag do luggage, [appellant] he had no sniff the that, you, right along to do willing go he had no probably he couldn’t with that; right? let’s waste but nevertheless his friend said Yes. APPELLANT: The search done time. Kelly, A.2d at 1288.4 OSEI-KUFFNOR,

Dorothy Appellant, ARGANA, Appellee.

Maria A.

No. 92-CV-148. Appeals.

District Columbia Court 11, 1992.

Submitted Dec. Jan.

Decided

Roger Greenberg, E. Beder- E. Andrew Johns, MD, man, E. Spring, Madalyn Silver Rockville, MD, appellant. for MD, O’Bryant, Spring, Silver

Michael T. appellee. for ROGERS, Judge, and Before Chief KING, Judges. Associate FERREN ROGERS, Judge: Chief Osei-Kuffnor, Appellant, Dorothy ap- grant judgment under peals from the Although analysis expressed foregoing the court 4. The necessitates consider- boxer shorts. scope by appellant. Ap- appellant the view that could not limit the ation of another issue raised decide, search, we pellant argues also the trial court erred in an issue need not appellant expressly concluding find that re- could not revoke his consent did not that he bulge supports fused a search. The record discovered further after appellant’s jock- appellant colostomy did not refuse search which not the bulge, strap, which worn over occurred. contained

Case Details

Case Name: Oliver v. United States

Court Name: District of Columbia Court of Appeals

Date Published: Apr 19, 1993

Citation: 618 A.2d 705

Docket Number: 90-CF-184

Court Abbreviation: D.C.