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DISTRICT OF COLUMBIA COURT OF APPEALS

No. 22-CF-0960

TRAVANION WARD-MINOR, APPELLANT,

V.

UNITED STATES, APPELLEE.

Appeal from the Superior Court

of the District of Columbia

(2018-CF2-014858)

(Hon. Michael O’Keefe, Trial Judge)

(Argued April 4, 2024 Decided June 6, 2024)

Richard P. Goldberg for appellant.

David B. Goodhand, Assistant United States Attorney, with whom Matthew 

M. Graves, United States Attorney, and Chrisellen R. Kolb, Nicholas P. Coleman,

and Stephanie Dinan, Assistant United States Attorneys, were on the brief, for 

appellee.

Before EASTERLY and SHANKER, Associate Judges, and FISHER, Senior Judge.

FISHER, Senior Judge: Appellant Travanion Ward-Minor challenges the denial 

of his motion to suppress evidence found on his person after he was handcuffed and 

frisked by an officer during a traffic stop. He argues that the trial court clearly erred 

in finding that the pat-down was a valid consent search and, therefore, permissible 
2

under the Fourth Amendment. On the specific facts of this case, we agree and 

reverse Ward-Minor’s convictions.

I. Factual and Procedural Background

A. Indictment and Conviction

After a loaded firearm was found on his person, Ward-Minor was charged 

with carrying a pistol without a license; possession of an unregistered firearm; and 

unlawful possession of ammunition, in violation of D.C. Code §§ 22-4504(a), 

7-2502.01(a), and 7-2506.01(3), respectively. Ward-Minor filed a motion to 

suppress all tangible evidence obtained from the search. The trial court denied the 

motion after a hearing held October 17, 2022, and Ward-Minor entered a conditional 

plea of guilty to the indictment, preserving his right to appeal the denial of his 

suppression motion.

1

 

1 Ward-Minor failed to specify in writing which pre-trial ruling or rulings he 

wanted to appeal, as required by Super. Ct. Crim. R. 11(a)(2). However, the 

government acknowledges that the plea was conditional and that the plea colloquy 

clearly reserved Ward-Minor’s right to appeal the suppression ruling. See Casey v. 

United States, 788 A.2d 155, 157-58 (D.C. 2002). While the parties dispute whether 

any other adverse pre-trial rulings were preserved for appellate review, we need not 

reach that question in light of our disposition of the suppression issue. See infra note 

13.
3

B. The Suppression Hearing

The evidence at the suppression hearing consisted of testimony from 

Lieutenant James Chatmon (who was a sergeant at the time of the traffic stop) and 

video footage from his body-worn camera (“BWC”). Chatmon testified that he and 

his partner, Lieutenant Modl, conducted a traffic stop involving Ward-Minor on 

October 8, 2018. At the time, Chatmon and Modl were both part of the Metropolitan 

Police Department’s Gun Recovery Unit, which specialized in “weapon recovery or 

weapon interdiction.” Lieutenant Modl, who was driving, initiated the stop after 

noticing that a car passing in the opposite direction had an “extremely dark” tint on 

its windows. Ward-Minor, a Black man who then was 21 years old, was seated in 

the front passenger seat of that vehicle. 

The BWC footage shows that Chatmon approached the passenger side of the 

vehicle and instructed Ward-Minor to roll the window down, which he did. WardMinor sat silently with his hands on the dashboard while Modl spoke with the driver, 

until Chatmon said to Ward-Minor, “Do me a favor, open your door for me, bro.” 

Ward-Minor unlatched the door handle and Chatmon pulled the door open the rest 

of the way. Chatmon then said, “Do me a favor, take a step—step out for me real 

quick[.]” Ward-Minor questioned why, as a passenger, he had to step out of the car, 

and said “I don’t feel safe.” Chatmon responded that the “Supreme Court says in a
4

traffic stop, everybody has to come out of the car, okay, if the officers ask.”2

 

Seemingly speaking of Ward-Minor’s reluctance to exit the car, Chatmon 

asked if the reason was “because you got something on you?” Ward-Minor admitted 

to having “weed”;

3 Chatmon suggested that this was “no big deal” and then asked if 

there was “something else other than weed on you.” Ward-Minor denied having 

anything else. 

As Ward-Minor started to move in response to the command to exit, Chatmon 

stopped him and handcuffed him behind his back. Chatmon testified that he used 

the handcuffs because Ward-Minor was “extremely nervous” and had “moved his 

hands towards his waist area, which again alarmed me a little bit,” and added that 

Ward-Minor had “mentioned that he had marijuana already, so I was concerned that 

he possibly could have a weapon.” Chatmon also noted that “he was still moving 

around kind of antsy, which further aroused my suspicion.” Holding onto WardMinor’s arms, Chatmon directed him out of the car and told him to turn around. As 

Ward-Minor started to turn, Chatmon told him, among other things, see infra note 

5, to “stop moving” and that he was “doing too much moving,” and then asked, “Do 

 2 See Maryland v. Wilson, 519 U.S. 408, 415 (1997) (holding that “an officer 

making a traffic stop may order passengers to get out of the car pending completion 

of the stop” without violating the Fourth Amendment).

3 Chatmon testified that he smelled marijuana as he approached the vehicle. 
5

you have something on you, my man?” A brief exchange followed in which 

Chatmon repeated that Ward-Minor’s movements made Chatmon think that WardMinor had “something” on him. 

Just before patting Ward-Minor down, Chatmon said “I’m just going to check 

you real quick, okay, make sure you don’t have nothing on you. That’s cool? All 

right.” Ward-Minor’s head is not visible at this point in the BWC footage, but one 

of his dreadlocks is visible and appears to bob up and down while Chatmon is still 

speaking. On direct examination (after the video had been played), Chatmon 

testified that “I asked him, you know, could I pat him down, at which point I did.” 

More detail was elicited on cross-examination, during which Chatmon agreed that 

he had said something like “I’m going to check you real quick if that’s cool” and 

that Ward-Minor “nodded or affirmed.”4

 

 

4 The exact exchange between defense counsel and Chatmon occurred as 

follows:

Q. And you said, I’m going to check you real quick if 

that’s cool, or something like that?

A. That’s correct.

Q. And he was in handcuffs at that time, right?

A. He was.

Q. And he nodded, right—or nodded or affirmed, right?
6

While it is difficult to make out the exact words, Ward-Minor can be heard on 

the BWC footage saying something to the effect that he knew he needed to spread 

his legs for the pat-down. Chatmon proceeded to pat down Ward-Minor’s legs and 

crotch area and found a firearm concealed in his compression shorts. 

C. The Trial Judge’s Findings

After the conclusion of evidence, the trial judge, Judge Michael O’Keefe, took 

a recess and reviewed the BWC footage again. He then denied the motion to 

suppress (as well as a separate motion to dismiss on equal-protection grounds) in 

oral rulings.

Judge O’Keefe first found that the initial stop of the vehicle was lawful based 

upon reasonable suspicion of a window tint violation, and that Chatmon was entitled 

to order Ward-Minor to step out of the car and to place him in handcuffs for officer 

safety. These findings are not disputed on appeal. While the government had argued 

that the search was justified by reasonable, articulable suspicion, Judge O’Keefe

stated that the “officer probably had a hunch” that Ward-Minor had a gun but 

expressed doubt that Chatmon had “articulated a sufficient basis to search[.]”5

 

 

A. Correct.

5 Judge O’Keefe observed that Chatmon appeared to give a series of confusing 

commands—e.g., “the officer was telling him to turn one way and then saying, well, 
7

However, the judge did not expressly rule on that issue, explaining that there was no 

need to “even get to the reasonable articulable suspicion” and that he did not know 

how he “would have come out on that.” The government has not pursued this theory 

on appeal (either as an alternative theory for affirmance or a basis for remand), and 

we, therefore, do not address it further. 

Judge O’Keefe concluded that “the linchpin of this whole thing is whether or 

not there was consent freely given[.]” He found that Chatmon had said “I’m going 

to check you. Is that okay?” and characterized this as “a statement and a question 

together[.]” (Defense counsel had previously conceded, in a colloquy with the judge 

during closing argument, that Chatmon had said “Is that cool?” and that this was a 

question.) The judge commented that “even though you can’t see Mr. Ward-Minor’s

head” in the BWC footage, he appeared to give an “affirmative response.” While 

the transcript does not capture the moment with perfect clarity, we agree with the 

government that the judge himself likely nodded his head to replicate the movement

he was finding to be Ward-Minor’s non-verbal response. 

Judge O’Keefe also indicated that he thought “there might even be a verbal 

response” because he “thought” he heard “‘all right’ or something like that, 

 

stop moving, like, stop moving, but move; move, but stop moving”—coupled with 

accusatory questions seemingly designed “to elicit some kind of incriminating 

statement to admit that he had something on him.”
8

something verbal as well.”6

 In addition, the judge placed great weight upon two 

other factors: first, that Ward-Minor seemed to “help or assist in getting ready for 

the search” by acknowledging that he knew he needed to spread his legs and second, 

that he “wasn’t shy about asserting” what he incorrectly “thought was his rights [sic]

about not having to get out of the car.” 

Judge O’Keefe turned to the issue of voluntariness and recited the nonexhaustive list of factors we articulated in Basnueva v. United States, 874 A.2d 363, 

369 (D.C. 2005). He then largely repeated the facts that had led him to conclude 

that there had been consent, noting again that Ward-Minor “went a little bit further 

by setting himself up to be searched by the officer, which to me would indicate to 

sort of a voluntariness.” The judge added that he did not “know what was going

through Mr. Ward-Minor’s mind at the time” but that “[a]ll I know is that on the tape 

he consents verbally[7], and it appears physically, and that he had the capacity and 

the intelligence to challenge the officer when he was first asked to step out of the 

vehicle, so it’s not like he is a shrinking violet.” Thus, he found that Ward-Minor 

 

6 Given the tentativeness of this observation, we do not treat it as a conclusive 

factual finding that there was a verbal response. Moreover, it is unsupported by the 

BWC footage or any testimony. The words “all right” are audible but are in fact 

spoken by Chatmon. 

7 We are unsure how to reconcile this comment with the judge’s earlier 

statement that there only “might” have been a verbal response.
9

had consented voluntarily.

Finally, Judge O’Keefe rejected Ward-Minor’s argument that the pat-down 

exceeded the scope of consent, another issue that is not before us on appeal. WardMinor filed a timely notice of appeal.

II. Discussion

A. Legal Background

“A search conducted without a warrant is ‘per se unreasonable’ under the 

Fourth Amendment unless it falls within a few specific and well-established 

exceptions.” Basnueva, 874 A.2d at 369 (quoting Schneckloth v. Bustamonte, 412 

U.S. 218, 219 (1973)). “One such exception is a search conducted with the consent 

of the person being searched.” Id. Where, as here, “the government contends the 

person agreed to a pat-down, it bears the burden to prove that ‘consent was, in fact, 

freely and voluntarily given.’” Dozier v. United States, 220 A.3d 933, 940 (D.C. 

2019) (quoting Bumper v. North Carolina, 391 U.S. 543, 548 (1968)). “This burden 

cannot be discharged by showing no more than acquiescence to a claim of lawful 

authority.” Bumper, 391 U.S. at 548-49.

The burden is on the government “to prove, by a preponderance of the 

evidence, that [the individual] affirmatively consented to [the] search.” Hawkins v. 
10

United States, 248 A.3d 125, 131 (D.C. 2021). “Because the government often 

asserts that a defendant consented in cases ‘where the police have some evidence of 

illicit activity, but lack probable cause to arrest or search,’” courts “carefully 

examine the government’s claim that a defendant consented.” United States v. 

Worley, 193 F.3d 380, 386 (6th Cir. 1999) (quoting Schneckloth, 412 U.S. at 227).

The voluntariness of consent is a factual question to be judged under the 

totality of the circumstances. Henderson v. United States, 276 A.3d 484, 489 (D.C. 

2022); Basnueva, 874 A.2d at 369. “The test is subjective, focusing specifically on 

the consenting person’s characteristics and subjective understanding and on whether 

consent was freely given.” Basnueva, 874 A.2d at 369 (quotation marks omitted). 

“‘Whether the suspect acts in his own best interest is not relevant to the 

determination of voluntary consent,’ and consent ‘may be freely given’ despite an 

officer’s failure to advise the suspect of his right to withhold consent.” Id. at 369 

n.16 (quoting Oliver v. United States, 618 A.2d 705, 709 (D.C. 1993)).

Whether a person consented to a search, and did so voluntarily, are findings 

of fact that we review for clear error. See Henderson, 276 A.3d at 489; Hawkins, 

248 A.3d at 129. Under the clearly erroneous standard, it is not enough to warrant 

reversal for a reviewing court to be “convinced that had it been sitting as the trier of 

fact, it would have weighed the evidence differently.” Dorsey v. United States, 60 
11

A.3d 1171, 1205 (D.C. 2013) (en banc) (quoting Anderson v. City of Bessemer City,

470 U.S. 564, 573-74 (1985)). However, while the “‘clearly erroneous standard of

review is highly constraining,’ it does not relieve us of our obligation to 

conscientiously review the trial court’s finding based on the record presented.” 

Hawkins, 248 A.3d at 130 (quoting Dorsey, 60 A.3d at 1205).

When reviewing for clear error, “[o]ur deference to the trial court’s factual 

determinations . . . extends to that court’s evaluation of the body-worn camera 

footage.” Henderson, 276 A.3d at 489; see also Hawkins, 248 A.3d at 130 (“This 

standard of review applies even though we are able to watch the same video footage 

that [the trial judge] studied.”). However, we will find clear error when “we are ‘on 

the entire evidence . . . left with the definite and firm conviction that a mistake has 

been committed.’” Hawkins, 248 A.3d at 131 (omission in original) (quoting 

Anderson, 470 U.S. at 573).

B. Review of the Trial Court’s Factual Findings

The question before us is whether the trial court clearly erred in finding that 

Ward-Minor consented, freely and voluntarily, to the warrantless search of his 

person. Judge O’Keefe found, among other things, that Chatmon asked for consent

to search, that Ward-Minor consented with a nod, and that this consent was 

voluntary. While the record supports the finding that Ward-Minor nodded, given 
12

the circumstances and the timing of the nod, we respectfully conclude that the record

does not support Judge O’Keefe’s finding of voluntary consent.

Defense counsel’s arguments before the trial court and Ward-Minor’s opening 

brief on appeal focused principally on the coercive circumstances of the stop and 

their bearing on the question of voluntariness; as a result, the government suggests 

that we should consider only whether consent was given voluntarily without 

addressing whether consent was in fact given at all. We doubt that such bifurcation 

is possible when analyzing the totality of the circumstances. In any event, in this 

case the disputed issue is not whether there was any affirmative response, but rather 

the meaning of that response. The timing of the nod largely determines whether 

Ward-Minor was agreeing to a request to conduct a pat-down search or merely 

acquiescing to Chatmon’s explanation of what he was about to do.

At the outset, we agree with Ward-Minor that his seizure and handcuffing are

relevant factors that should be considered in evaluating his claim that he did not give 

voluntary consent. See Oliver, 618 A.2d at 709 (“The voluntariness of consent is 

determined by careful scrutiny of all circumstances surrounding the search.”).8

 Such 

 8 See Henderson, 276 A.3d at 490 (noting in support of a finding of 

voluntariness that the consenting person “was not seized and his freedom of 

movement was not curtailed”); Kelly v. United States, 580 A.2d 1282, 1289 (D.C. 

1990) (noting that there “was no detention or physical coercion[ and] no show of 

force”); United States v. Magallon, 984 F.3d 1263, 1281-82 (8th Cir. 2021) (custody 
13

factors are not, however, fatal to a claim of voluntariness. See United States v. 

Watson, 423 U.S. 411, 424 (1976) (“[T]he fact of custody alone has never been 

enough in itself to demonstrate a coerced confession or consent to search.”); United 

States v. Lee, 793 F.3d 680, 686 (6th Cir. 2015) (“[J]ust because a defendant is 

handcuffed when he or she gives consent does not make such consent invalid.”). 

Rather, that Ward-Minor was seized, handcuffed, and under Chatmon’s physical 

control over his movements tends to weigh in Ward-Minor’s favor when considering 

the totality of the circumstances. 

Here, Ward-Minor was ordered out of the car, handcuffed, and physically 

restrained by the officer, who told him to “stop moving” so much and repeatedly 

insinuated that he had contraband. Up to that point in the encounter, Chatmon’s own 

testimony shows that his requests—to roll down the window, to open the door, to 

step out of the car, and so on—were in fact commands. This was true regardless of 

how they were phrased. For example, when Chatmon said, “Do me a favor, take a 

step—step out for me real quick,” he was, in fact, issuing an order to step out of the 

car. While the order to get out of the car was itself perfectly legal, see supra note 2, 

Chatmon’s response to Ward-Minor’s attempt to question that order—the “Supreme 

Court says in a traffic stop, everybody has to come out of the car, okay, if the officers 

 

and handcuffing weigh against voluntariness but do not preclude a finding of 

voluntariness).
14

ask” (emphasis added)—further blurred the distinction between a request and an 

order. 

While these circumstances do not preclude a finding of voluntariness, they do

provide crucial context in which we must view Ward-Minor’s purported 

manifestation of consent. “Consent may be implied, but this requires an affirmative 

act by the individual about to be searched.” Hawkins, 248 A.3d at 129; see also 

United States v. Taylor, 60 F.4th 1233, 1243 (9th Cir. 2023) (“[C]onsent can be 

inferred from conduct, such as a head nod.”), cert. denied, 144 S. Ct. 828 (2024). 

Even in the absence of “overt duress or coercion” or any particular characteristics of 

the defendant undermining “the ability to freely consent,” the government still must 

show a “statement of free and voluntary consent, not merely a response conveying 

an expression of futility in resistance to authority or acquiescing in the officers’

request.” Worley, 193 F.3d at 386. We thus turn to the specific findings regarding 

the manifestation of assent.

Judge O’Keefe found that Chatmon stated his intent to search (“I’m going to 

check you . . . ”) and followed it with a question (“that’s cool?”). That finding is not 

clearly erroneous. Although perhaps not phrased as one, the latter half of that 
15

statement was at least “inflected as a question.”9

 T.W. v. United States, 292 A.3d 

790, 793 n.1 (D.C. 2023). (We note that the trial judge recounted the question as “Is 

that okay?” However, even assuming that is a “subtle discrepancy, we rely on the 

statement as clearly reflected in the video footage.” Id.)

Judge O’Keefe at times suggested that Ward-Minor gave both a verbal and a 

non-verbal response. However, insofar as he found that there was a verbal response, 

that finding is without support in either the BWC footage or Chatmon’s testimony.10 

See supra note 6; Hawkins, 248 A.3d at 130-31. 

Thus, the finding on which our review turns is that Ward-Minor consented 

with a head nod.

11 That he nodded is adequately supported, both by Chatmon’s 

testimony on cross-examination and by the apparent movement of Ward-Minor’s 

dreadlock in the video footage. However, Judge O’Keefe made no explicit findings 

 

9 As the government notes, defense counsel expressly conceded below that the 

latter half was a question. 

10 The government does not suggest otherwise, but nevertheless argues that 

this point was conceded below, because defense counsel said “I think he says 

something maybe like ‘yeah’ or something like that, Your Honor.” We do not take 

this tentative and ambiguous statement as a binding concession.

11 While Judge O’Keefe also observed that Ward-Minor said something about 

spreading his legs and set himself up to be searched, there has been no suggestion 

by the government or the judge that this, on its own (i.e., without the nod), was 

enough to carry the government’s burden of proving consent.
16

about the timing of the nod with respect to Chatmon’s statement and question. Upon 

our careful review of the video footage, we are firmly convinced that the head nod 

(as indicated by the movement of Ward-Minor’s hair) was contemporaneous with, 

if not before, the word “that’s” and undoubtedly before “cool.” Thus, insofar as the 

trial judge implicitly found that the nod followed the question, that finding is clearly 

erroneous.

Because the nod came before “that’s cool?,” the government proved at most 

that Ward-Minor nodded in response to “I’m just going to check you real quick, 

okay, make sure you don’t have nothing on you.” The trial court found, and it is 

undisputed on appeal, that this was a statement, not a question.12 The nod could not 

have been an affirmative response to a question not yet asked. See Hawkins, 248 

A.3d at 130 (“While there are no per se rules for how much time an individual must 

have to consider whether to consent to a search, surely some opportunity to grant or 

deny consent is necessary.”). At least under the particular circumstances of this case, 

the nod, coming before any question had been posed, was insufficient to establish 

anything more than acknowledgement of Chatmon’s statement that he intended to 

 12 The government acknowledged at oral argument that “that’s cool”—rather 

than the “okay” following “real quick”—was the operative question and the basis 

for the trial court’s finding of consent. The trial court also did not place any 

significance on the word “okay,” nor, in our review of the video footage, does it 

seem to have been inflected as a question.
17

search. Thus, it was not affirmative, voluntary consent to be searched, but rather 

acquiescence to the officer’s authority.

For the reasons explained above, we cannot agree that the government carried 

its burden of proving that Ward-Minor freely and voluntarily consented to be 

searched, and, based on the record as a whole, we are left with a definite and firm 

conviction that a mistake has been committed. Anderson, 470 U.S. at 573. Because 

the evidence obtained from the search should have been suppressed, and was the 

sole evidence against Ward-Minor on the firearm and ammunition charges, we 

reverse Ward-Minor’s convictions.

13

III. Conclusion

For the foregoing reasons, the judgment of the Superior Court is reversed, and 

this case is remanded for further proceedings consistent with this opinion.

So ordered.

 13 Because we reverse Ward-Minor’s convictions on Fourth Amendment 

grounds, we need not address his alternative challenge to the denial of his motion to 

compel discovery in support of his motion to dismiss on equal-protection grounds.