## 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 Defende r, 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.-2-

Marland Lamont Hill entered a conditional plea of g uilty to one count of possession with intent to distribute ten grams or m ore 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 moti on to suppress evidence found during a search of his luggage while on a bus in Ga llup, New Mexico. We affirm.

BACKGROUND During April and May of 1998, McKinley County, New Mexico, deputy sheriff George Justice routinely conducted narcotic s 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 tw enty minutes to an hour. At approximately 12:40 p.m. on May 28, 1998, DeputyJustice asked and was granted permission by Greyhound bus driver Stev e Beach to question the passengers on his bus while it was stopped at the p ort 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 atthe front of the bus, beside the only exit, and announced, “My name is George Justic e. I’m from McKinley-3-

County Sheriff’s Department, Narcotics InterdictionUnit. I’m going to start at the rear of the bus, work my way forward. If you w ould please identify your carry-on luggage.” Vol. III Tr. at 12. He proceed ed 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 approximatel y mid-way towards the rear of the bus. He was twenty-one years old at th at time. Another passenger sat in the aisle seat next to him. Deputy Justice test ified 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 h im 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 in1 Deputy Justice testified he was familiar with the s mell of PCP from four

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

. -4- 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 d id not have to permit the deputy to search the bag. Deputy Justice testified that M r. 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, wo rking his way toward the front of the bus and toward Mr. Hill’s bag. Wh en he reached the bag, he “pulled the bag out.” Id. at 18. He testified that he “turned to Mr. Hill a nd 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?’” andthat Mr. Hill responded “yes.” Id. at 19. When the deputy opened the bag, he “smelle d 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 sma ll brown bottles. When he-5-

opened one of the bottles, he “smelled a very stron g 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 identificati on, and Mr. Hill gave him an Oklahoma identification card with his correct na me on it. The deputy ran a computer check on the card which apparently reveale d nothing unusual. Deputy Justice then returned the card to Mr. Hill. DeputyJustice also asked his dispatch center to check with a health food store on the sme ll 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 su bstance to be phencyclidine or PCP, and advised him that [he] was going to seize i t, 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 agentKevin Small and advised him of the seizure of Mr. Hill’s bottles an d 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 bott les, which tested positive for PCP. Agent Small contacted Mr. Hill when the bus arrived in Albuquerque, and-6-

Mr. Hill initially denied any contact with Deputy J ustice. Deputy Justice then met Agent Small at the Albuquerque bus station and hand ed him the bottles seized from Mr. Hill. The two officers subsequently arres ted Mr. Hill. Mr. Hill filed a motion to suppress the bottles fou nd in the blue bag, along with any statements he made, arguing that the encou nter with Deputy Justice was a non-consensual seizure for which Deputy Justice l acked reasonable suspicion. The district court denied the motion to suppress, h olding as follows: Well, I would indeed grant the request and quash th e evidence, but for the fact that Agent Justice specifically told t he defendant he was not required to give consent to the search. I thin k that is the one distinguishing factor . . . . I think the circumst ances are otherwise coercive, and the defendant’s objective consent to search, after being told – after being told he was not required to cons ent, I think negates those other coercive factors. Id. at 117-18. Mr. Hill conditionally pled guilty, an d this appeal followed.

DISCUSSION “When reviewing a district court’s denial of a moti on to suppress, we accept its factual findings unless clearly erroneou s 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 deter mination of Fourth Amendment reasonableness is a question of law which we review de novo. See-7-

United States v. Hunnicutt , 135 F.3d 1345, 1348 (10th Cir. 1998). As this co urt has repeatedly recognized, there are: three categories of police-citizen encounters: (1) consensual encounters which do not implicate the Fourth Amendm ent[;] (2) investigative detentions which are Fourth Amend ment seizures of limited scope and duration and must be supported bya 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 commu nicated to a reasonable person that he was not at liberty to ignore the pol ice 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 o r 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 whet her a reasonable person would not feel free to terminate the encounter with police: the threatening presence of several officers; the b randishing of a weapon by an officer; some physical touching by an officer; use of-8-

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 o r bus tickets; a request to accompany the officer to the station; in teraction in a nonpublic place or a small, enclosed place; and abs ence 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 re asonable 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 hi s 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 determinati ve weight to the fact that Deputy Justice specifically told Mr. Hill that he n eed 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 s ingle factor is determinative, we conclude that the totality of the circumstances sur rounding the encounter between2 Mr. 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 circ umstance is different from cases where the presence of multiple officers in the actu al 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 suggest ing that encounter was a seizure was fact that two officers together approac hed defendant in train roomette), overruled in part byUnited States v. Little , 18 F.3d 1499 (10th Cir. 1994) (en banc). -9- Deputy Justice and Mr. Hill indicate that the encou nter 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 b oarded 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 th e 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 t hat 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-10-

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 passen gers (standing in the aisle at the rear of their seat, necessitating that he occas ionally “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 officerdid not block exit). Thus, in this case, the bus setting and the particulars of D eputy Justice’s movements within the bus do not favor a finding of coercion. Mr. Hill argues that Deputy Justice’s tone, demeano r and the nature of his questions were threatening and coercive. The distr ict court made no specific findings on the deputy’s tone or manner of question ing. 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 deputyasked him potentially incriminating questions, and that rendered the enco unter more coercive. Although Deputy Justice announced that he was from the narco tics interdiction unit, thereby implying his purpose was to look for drugs, his actual questioning of passengers3 Mr. 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

. -11- related only to their travel itineraries and the wh ereabouts 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 o fficers can approach individuals as to whom they have no reasonable suspicion and as k them potentially incriminating questions” is “by no means novel” andin fact “has been endorsed by the Court any number of times”). Thus, this fac tor 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 r equests whether he really wanted to or not, because of prior negative experiences with police officers. 3 We have stated repeatedly “that the particular persona l traits or subjective state of mind of the defendant are irrelevant to the objecti ve ‘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-12-

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 t o specifically advise Mr. Hill, or any other passenger, that they did nothave 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 l eave, that is not required for an encounter to be consensual.”). Moreover, as the di strict court particularly noted, Deputy Justice did tell Mr. Hill that he need not p ermit him to search his carry-on bag. “While we do not suggest that an advisement c oncerning answering questions is the same as an advisement concerning the search of luggage, . . . [the officer’s] unambiguous and explicit advisement conc erning the search of [Mr. Hill’s] luggage is relevant to the totality of the circumstances surrounding the encounter.” Little , 18 F.3d at 1505.4 Mr. Hill places great reliance upon a recent Eleven th 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 invol untary. Guapi is factually distinguishable in significant ways from this case: in Guapi , two officers boarded the bus, one in full uniform; they specifically tol d the passengers that they would be inspecting everyone’s carry-on luggage for illeg al contraband; they never informed passengers that they did not have to conse nt 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 part icular case, such factual distinctions are significant. -13- 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 th at 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 defe ndant’s consent for the validity of a search, the government bears the burd en of proving that defendant’s consent was freely and voluntarily given, a determi nation 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 que stioning of Mr. Hill was not a seizure. We conclude that those same factors do no t render involuntary Mr. Hill’s5 Mr. Hill’s primary argument on appeal is that the c onsent was involuntary

because it occurred during an illegal detention. T his particular argument fails with our conclusion that there was no illegal deten tion. -14- 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 sear ch 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 w ith “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 re levant 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 indici a 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.