F I L E D

United States Court of Appeals

Tenth Circuit

DEC 21 1999

PATRICK FISHER

Clerk

PUBLISH

UNITED STATES COURT OF APPEALS

TENTH CIRCUIT

UNITED STATES OF AMERICA,

Plaintiff - Appellee,

v. No. 99-2122

MARLAND LAMONT HILL,

Defendant - Appellant.

APPEAL FROM THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF NEW MEXICO

(D.C. NO. CR-98-425-BB)

Alonzo J. Padilla, Assistant Federal Public Defender, Albuquerque, New Mexico,

for Appellant.

David N. Williams, Assistant United States Attorney (John J. Kelly, United States

Attorney and James D. Tierney, Assistant United States Attorney, on the brief),

Albuquerque, New Mexico, for Appellee.

Before ANDERSON , PORFILIO , and EBEL , Circuit Judges.

ANDERSON , Circuit Judge.
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Marland Lamont Hill entered a conditional plea of guilty to one count of

possession with intent to distribute ten grams or more of phencyclidine (“PCP”),

in violation of 21 U.S.C. §§ 841(a) and (b)(1)(B). He brought this appeal

challenging the district court’s denial of his motion to suppress evidence found

during a search of his luggage while on a bus in Gallup, New Mexico. We affirm.

BACKGROUND

During April and May of 1998, McKinley County, New Mexico, deputy

sheriff George Justice routinely conducted narcotics searches of carry-on luggage

on buses stopped at the Gallup, New Mexico, port of entry from Arizona. All

buses entering New Mexico from Arizona stopped at the port of entry to permit

inspection of the buses and license verification. Bus driver Vernon Wittner

testified that passengers always stayed on the bus while Deputy Justice conducted

his searches. The searches lasted anywhere from twenty minutes to an hour. 

At approximately 12:40 p.m. on May 28, 1998, Deputy Justice asked and

was granted permission by Greyhound bus driver Steve Beach to question the

passengers on his bus while it was stopped at the port of entry. Deputy Justice

boarded the bus, dressed in plain clothes but with his badge visible on his belt and

a gun in its holster on his right hip. He stood at the front of the bus, beside the

only exit, and announced, “My name is George Justice. I’m from McKinley
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County Sheriff’s Department, Narcotics Interdiction Unit. I’m going to start at

the rear of the bus, work my way forward. If you would please identify your

carry-on luggage.” Vol. III Tr. at 12. He proceeded to the back of the bus and

began asking each passenger about his or her travel itinerary. He also asked each

passenger to identify his or her carry-on luggage. He testified that he asked every

fourth passenger if he could search his or her carry-on luggage. See id. at 9, 48. 

He further testified that when he asked permission to search, he “always told them

that they did not have to let [him] search their luggage.” Id. at 10. When he

questioned passengers, he stood in the aisle to the rear of their seat, so that “at

times [he] would have to lean in.” Id. at 50. He further testified that he

estimated the width of the bus aisle to be three and one half feet. See id. at 49. 

Deputy Justice is six feet one inch tall and weighs 185 pounds.

Mr. Hill was seated in the window seat approximately mid-way towards the

rear of the bus. He was twenty-one years old at that time. Another passenger sat

in the aisle seat next to him. Deputy Justice testified that, when he reached Mr.

Hill’s seat, he asked him if he had any carry-on luggage. Id. at 15. When Mr.

Hill answered affirmatively, Deputy Justice asked him to identify it, which Mr.

Hill did, indicating that it was a blue bag in the overhead compartment towards

the front of the bus. Deputy Justice then inquired about Mr. Hill’s travel

itinerary. He testified that Mr. Hill indicated he had attended a funeral in
1Deputy Justice testified he was familiar with the smell of PCP from four

prior cases involving the drug. Vol. III Tr. at 19. 

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California and was returning home to Tulsa, Oklahoma. See id. at 17. Deputy

Justice then asked Mr. Hill if he could search his blue carry-on bag. The deputy

stated that he specifically told Mr. Hill that he did not have to permit the deputy

to search the bag. Deputy Justice testified that Mr. Hill gave him permission to

search the bag. See id. The deputy further testified that, at that time, Mr. Hill

“was sitting with his hands near his lap, and he was visibly shaking.” Id.

Deputy Justice continued questioning passengers, working his way toward

the front of the bus and toward Mr. Hill’s bag. When he reached the bag, he

“pulled the bag out.” Id. at 18. He testified that he “turned to Mr. Hill and said,

‘Is this your bag?’ And he advised yes.” Id. at 18-19. Deputy Justice stated he

asked, “‘Are you sure I can look in your bag?’” and that Mr. Hill responded

“yes.” Id. at 19. When the deputy opened the bag, he “smelled a very strong

chemical odor” which he testified he “believed to be PCP, phencyclidine.” Id. 1

Deputy Justice then “advised [Mr. Hill] to come off the bus with [him.]” Id. at

20. They both exited the bus.

Once outside the bus, the deputy asked Mr. Hill if everything in the bag

was his, to which Mr. Hill answered affirmatively. Inside a pair of pants in the

bag Deputy Justice found a sock containing nine small brown bottles. When he
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opened one of the bottles, he “smelled a very strong chemical odor . . . an

overwhelming odor that PCP emits.” Id. at 24. Deputy Justice testified that,

when he stated that the bottle appeared to contain PCP, Mr. Hill replied that the

liquid was ginseng purchased for him by his uncle in California. Id. at 25.

Deputy Justice then asked Mr. Hill for identification, and Mr. Hill gave him

an Oklahoma identification card with his correct name on it. The deputy ran a

computer check on the card which apparently revealed nothing unusual. Deputy

Justice then returned the card to Mr. Hill. Deputy Justice also asked his dispatch

center to check with a health food store on the smell and appearance of ginseng,

and was told that “ginseng had little to no odor.” Id. at 26. At that point, Deputy

Justice “advised Mr. Hill that [he] believed the substance to be phencyclidine or

PCP, and advised him that [he] was going to seize it, but he [Mr. Hill] was free to

leave.” Id. at 27. Mr. Hill got back on the bus with his bag, and Deputy Justice

retained the sock and nine bottles.

Deputy Justice then contacted Albuquerque DEA agent Kevin Small and

advised him of the seizure of Mr. Hill’s bottles and told Agent Small that he

believed they contained PCP. Agent Small indicated he would attempt to identify

Mr. Hill when the bus arrived in Albuquerque. Deputy Justice subsequently

conducted a field test on the substance in the bottles, which tested positive for

PCP. Agent Small contacted Mr. Hill when the bus arrived in Albuquerque, and
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Mr. Hill initially denied any contact with Deputy Justice. Deputy Justice then met

Agent Small at the Albuquerque bus station and handed him the bottles seized

from Mr. Hill. The two officers subsequently arrested Mr. Hill.

Mr. Hill filed a motion to suppress the bottles found in the blue bag, along

with any statements he made, arguing that the encounter with Deputy Justice was

a non-consensual seizure for which Deputy Justice lacked reasonable suspicion. 

The district court denied the motion to suppress, holding as follows:

Well, I would indeed grant the request and quash the evidence, but

for the fact that Agent Justice specifically told the defendant he was

not required to give consent to the search. I think that is the one

distinguishing factor . . . . I think the circumstances are otherwise

coercive, and the defendant’s objective consent to search, after being

told – after being told he was not required to consent, I think negates

those other coercive factors.

Id. at 117-18. Mr. Hill conditionally pled guilty, and this appeal followed.

DISCUSSION

“When reviewing a district court’s denial of a motion to suppress, we

accept its factual findings unless clearly erroneous and view the evidence in the

light most favorable to the government.” United States v. Hargus , 128 F.3d 1358,

1361 (10th Cir. 1997). However, the ultimate determination of Fourth

Amendment reasonableness is a question of law which we review de novo. See
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United States v. Hunnicutt , 135 F.3d 1345, 1348 (10th Cir. 1998). As this court

has repeatedly recognized, there are:

three categories of police-citizen encounters: (1) consensual

encounters which do not implicate the Fourth Amendment[;]

(2) investigative detentions which are Fourth Amendment seizures of

limited scope and duration and must be supported by a reasonable

suspicion of criminal activity[;] and (3) arrests, the most intrusive of

Fourth Amendment seizures and reasonable only if supported by

probable cause.

United States v. Shareef , 100 F.3d 1491, 1500 (10th Cir. 1996) (quotations

omitted). In determining whether a police-citizen encounter is consensual, “the

crucial test is whether, taking into account all of the circumstances surrounding

the encounter, the police conduct would ‘have communicated to a reasonable

person that he was not at liberty to ignore the police presence and go about his

business.’” Florida v. Bostick , 501 U.S. 429, 437 (1991) (quoting Michigan v.

Chesternut , 486 U.S. 567, 569 (1988)); see also United States v. Little , 18 F.3d

1499, 1503 (10th Cir. 1994) (en banc). No per se or absolute rules govern this

inquiry. See Ohio v. Robinette , 519 U.S. 33, 39 (1996); Little , 18 F.3d at

1503-04. “Rather, every case turns on the totality of the circumstances

presented.” Little , 18 F.3d at 1503.

We have identified various factors relevant to whether a reasonable person

would not feel free to terminate the encounter with police:

the threatening presence of several officers; the brandishing of a

weapon by an officer; some physical touching by an officer; use of
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aggressive language or tone of voice indicating that compliance with

an officer’s request is compulsory; prolonged retention of a person’s

personal effects such as identification and plane or bus tickets; a

request to accompany the officer to the station; interaction in a

nonpublic place or a small, enclosed place; and absence of other

members of the public.

United States v. Sanchez , 89 F.3d 715, 718 (10th Cir. 1996) . We have

“steadfastly refused to view any one of these factors as dispositive.” United

States v. Glass , 128 F.3d 1398, 1406 (10th Cir. 1997).

Mr. Hill argues that the encounter between himself and Deputy Justice was

a non-consensual and unlawful seizure, because a reasonable person in Mr. Hill’s

position would not have felt free to terminate the encounter or ignore the deputy’s

questions. He argues that his consent to search his bag was the product of that

unlawful seizure and was, therefore, involuntary. Without making extensive or

specific factual findings, the district court held that the encounter was consensual. 

In so doing, the court appeared to give determinative weight to the fact that

Deputy Justice specifically told Mr. Hill that he need not consent to a search of

his bag, stating that the deputy’s advisement “negates those other coercive

factors.” Vol. III Tr. at 118.

We affirm the district court’s ultimate conclusion that the encounter did not

violate the Fourth Amendment, although we do so on slightly different grounds

than the district court. Bearing in mind that no single factor is determinative, we

conclude that the totality of the circumstances surrounding the encounter between
2Mr. Hill argues that Deputy Justice was not really alone, because armed

uniformed motor transportation officers were in the general vicinity of the bus. 

The district court made no finding on that point. Even assuming transportation

officers were in the vicinity of the bus, that circumstance is different from cases

where the presence of multiple officers in the actual encounter with the citizen

weighs in favor of coerciveness. Cf. United States v. Ward, 961 F.2d 1526, 1530

(10th Cir. 1992) (noting that among factors suggesting that encounter was a

seizure was fact that two officers together approached defendant in train

roomette), overruled in part by United States v. Little, 18 F.3d 1499 (10th Cir.

1994) (en banc).

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Deputy Justice and Mr. Hill indicate that the encounter was consensual and that

Mr. Hill’s consent to search his bag was voluntary. To the extent it became a

non-consensual investigative detention when Deputy Justice asked Mr. Hill to exit

the bus with him, Deputy Justice had, at that point, reasonable suspicion that

criminal activity was occurring based upon the PCP smell emanating from

Mr. Hill’s bag.

The undisputed facts indicate that Deputy Justice boarded the bus alone, in

plain clothes but with a badge and holstered gun visible. 2

 The encounter occurred

on a bus, but in view of the other passengers on the bus. While the bus may have

been a more confining and cramped environment than other locations, the

Supreme Court and this court have held repeatedly that the location of the

encounter is but one factor in the totality of the circumstances. See Bostick , 501

U.S. at 439 (“The cramped confines of a bus are one relevant factor that should be
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considered in evaluating whether a passenger’s consent is voluntary.”); Little , 18

F.3d at 1504.

Mr. Hill argues Deputy Justice effectively blocked access to the bus’s only

exit in front, thereby rendering the encounter more coercive. The district court

made no findings on that point. However, from the undisputed description of

where Deputy Justice stood while questioning passengers (standing in the aisle at

the rear of their seat, necessitating that he occasionally “lean in” to talk to the

passenger), it appears he did not block such access. Cf. United States v. Kim , 27

F.3d 947, 952 (3d Cir. 1994) (noting among factors contributing to conclusion

that encounter was consensual was fact that officer did not block exit). Thus, in

this case, the bus setting and the particulars of Deputy Justice’s movements

within the bus do not favor a finding of coercion.

Mr. Hill argues that Deputy Justice’s tone, demeanor and the nature of his

questions were threatening and coercive. The district court made no specific

findings on the deputy’s tone or manner of questioning. Deputy Justice testified

that he felt his manner was “very friendly.” Vol. III Tr. at 54. No contradictory

evidence was presented. Mr. Hill argues the deputy asked him potentially

incriminating questions, and that rendered the encounter more coercive. Although

Deputy Justice announced that he was from the narcotics interdiction unit, thereby

implying his purpose was to look for drugs, his actual questioning of passengers
3Mr. Hill was apparently shot without justification by a police officer when

he was twelve years old. This incident resulted in serious injury to him. At a

later time he was beaten by the same police officer.

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related only to their travel itineraries and the whereabouts of their carry-on

luggage. Even assuming that those questions could be viewed as potentially

incriminating, our en banc court has stated that “ Bostick specifically observed

that police officers ask such questions, and in no way suggested that there is

anything unlawful in the practice.” Little , 18 F.3d at 1506. See Bostick , 501

U.S. at 439 (noting that “proposition that police officers can approach individuals 

as to whom they have no reasonable suspicion and ask them potentially

incriminating questions” is “by no means novel” and in fact “has been endorsed

by the Court any number of times”). Thus, this factor also fails to support a

conclusion of coercion.

Mr. Hill also suggests that he was more vulnerable to coercion by police

officers, and more inclined to comply with police requests whether he really

wanted to or not, because of prior negative experiences with police officers. 3 We

have stated repeatedly “that the particular personal traits or subjective state of

mind of the defendant are irrelevant to the objective ‘reasonable person’ test set

out in Bostick , ‘other than to the extent that they may have been known to the

officer and influenced his conduct.’” Little , 18 F.3d at 1505 (quoting United

States v. Bloom , 975 F.2d 1447, 1455 n.9 (10th Cir. 1992), overruled in part by
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United States v. Little , 18 F.3d 1499 (10th Cir. 1994) (en banc)); see also

Sanchez , 89 F.3d at 718; United States v. Zapata , 997 F.2d 751, 757 (10th Cir.

1993); United States v. Laboy , 979 F.2d 795, 799 (10th Cir. 1992). There is no

evidence that Deputy Justice was aware of Mr. Hill’s attitude toward police

officers, based as it was upon Mr. Hill’s unfortunate childhood experiences, so

this factor is irrelevant to the consensual or non-consensual nature of the

encounter.

Mr. Hill further argues that the deputy’s failure to specifically advise

Mr. Hill, or any other passenger, that they did not have to answer his questions

rendered the encounter a non-consensual seizure. “There is no per se rule

requiring such an advisement.” Little , 18 F.3d at 1505; see also United States v.

Anderson , 114 F.3d 1059, 1064 (10th Cir. 1997) (“While [the officer] did not

specifically tell [defendant] that he was free to leave, that is not required for an

encounter to be consensual.”). Moreover, as the district court particularly noted,

Deputy Justice did tell Mr. Hill that he need not permit him to search his carry-on

bag. “While we do not suggest that an advisement concerning answering

questions is the same as an advisement concerning the search of luggage, . . . [the

officer’s] unambiguous and explicit advisement concerning the search of [Mr.

Hill’s] luggage is relevant to the totality of the circumstances surrounding the

encounter.” Little , 18 F.3d at 1505.
4Mr. Hill places great reliance upon a recent Eleventh Circuit case, United

States v. Guapi, 144 F.3d 1393 (11th Cir. 1998), in which the court held that a

bus passenger’s consent to search his bag was involuntary. Guapi is factually

distinguishable in significant ways from this case: in Guapi, two officers boarded

the bus, one in full uniform; they specifically told the passengers that they would

be inspecting everyone’s carry-on luggage for illegal contraband; they never

informed passengers that they did not have to consent to the search of their bags;

the officer conducting the search of each bag stood in front of each passenger,

thereby blocking access to the only exit. Because each case turns upon the

totality of the circumstances presented in the particular case, such factual

distinctions are significant.

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In sum, we affirm the district court’s conclusion that the encounter between

Mr. Hill and Deputy Justice was consensual, but on the ground that the totality of

the circumstances, including the deputy’s explicit advisement that Mr. Hill need

not consent to a search of his luggage, indicate that a reasonable person would

have felt free to terminate the encounter. 4

Mr. Hill further argues that his consent to search his luggage was

involuntary. “When the government relies on a defendant’s consent for the

validity of a search, the government bears the burden of proving that defendant’s

consent was freely and voluntarily given, a determination we make by evaluating

the totality of the circumstances.” Sanchez , 89 F.3d at 718. Mr. Hill argues that

“[t]he same factors that rendered deputy Justice’s interrogation of Mr. Hill a

seizure also rendered Mr. Hill’s consent involuntary.” Appellant’s Brief-in-Chief

at 19. We have concluded that Deputy Justice’s questioning of Mr. Hill was not a

seizure. We conclude that those same factors do not render involuntary Mr. Hill’s
5Mr. Hill’s primary argument on appeal is that the consent was involuntary

because it occurred during an illegal detention. This particular argument fails

with our conclusion that there was no illegal detention.

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otherwise unequivocal consent, which he gave twice, to a search of his bag. See

Anderson , 114 F.3d at 1064-65 (holding that consent to search given during a

consensual encounter was voluntary). 5 No other relevant evidence indicates that

Mr. Hill’s consent was involuntary. See United States v. Mendez , 118 F.3d 1426,

1432 (10th Cir. 1997) (holding that consent given with “no signs of coercion or

duress” during a lawful detention was voluntary). While Mr. Hill’s “subjective

state of mind” regarding police officers “may be relevant to some degree to the

issue of the voluntariness of [his] consent,” Zapata , 997 F.2d at 757, we hold that,

in this case, it does not overcome the other indicia that Mr. Hill’s consent was

freely and voluntarily given.

For the foregoing reasons, the decision of the district court denying

Mr. Hill’s motion to suppress is AFFIRMED.