F I L E D
United States Court of Appeals
Tenth Circuit
PUBLISH
JAN 18 2000
UNITED STATES COURT OF APPEALS
PATRICK FISHER
Clerk
TENTH CIRCUIT
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
v. No. 99-3106
DONALD RAY BROOMFIELD,
Defendant-Appellant.
Appeal from the United States District Court
for the District of Kansas
(D.C. No. 98-CR-40021-1)
Gregory G. Hough (Jackie N. Williams, United States Attorney, with him on the
brief), Assistant United States Attorney, Topeka, Kansas, for Plaintiff-Appellee.
Charles D. Dedmon (David J. Phillips, Federal Public Defender, with him on the
brief), First Assistant Federal Public Defender, Topeka, Kansas, for Defendant-
Appellant.
Before SEYMOUR, BALDOCK and BRORBY, Circuit Judges.
BRORBY, Circuit Judge.
Mr. Donald Broomfield appeals his conviction on one count of possession
with intent to distribute crack cocaine in violation of 21 U.S.C. § 841(a)(1). He
raises two issues on appeal. First, he claims the district court erred in failing to
suppress evidence seized during a bus interdiction at the Greyhound Bus
Terminal in Topeka, Kansas. Second, he claims he was denied a constitutionally
fair trial because the prosecutor vouched for the truthfulness of the government’s
witnesses during closing argument. Exercising jurisdiction pursuant to 28 U.S.C.
§1291, we affirm Mr. Broomfield’s conviction.
BACKGROUND
Mr. Broomfield boarded a Greyhound bus at 11:00 p.m. on March 2, 1998,
in Los Angeles, California. He changed buses in Denver, Colorado, and
proceeded through Colorado and into Kansas. On arriving in Topeka, Kansas, at
approximately 11:05 a.m. on March 3, the passengers, including Mr. Broomfield,
were permitted to leave the bus to stretch their legs, smoke or use the restroom.
Mr. Broomfield chose to remain on the bus. After all the passengers who wanted
to exit the bus had done so, Drug Enforcement Administration Special Agent
Walt Thrower boarded the bus and walked directly to the rear to speak with
passengers regarding their travel.
Mr. Broomfield was seated in the rear bench seat on the driver’s side of the
bus, immediately adjacent to the restroom. The bench seat has room for three
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passengers. An unidentified woman sat next to him, closest to the aisle. When
he got to the back of the bus, Agent Thrower identified himself to Mr.
Broomfield, both verbally and by showing his badge. When Agent Thrower
asked if he could speak with him, Mr. Broomfield agreed. Agent Thrower did
not advise Mr. Broomfield he could decline to talk to him.
Standing in the aisle between Mr. Broomfield’s seat and the restroom,
Agent Thrower asked Mr. Broomfield where he was traveling from. Mr.
Broomfield replied Los Angeles. When asked where he was going, Mr.
Broomfield responded St. Louis. Mr. Broomfield said he planned to stay in St.
Louis for about a week. Agent Thrower then asked Mr. Broomfield if he had any
bags, pointing to the overhead rack. Mr. Broomfield grabbed a burgundy-colored
Wilson gym bag that sat next to him on the seat. He denied having any
additional baggage. Mr. Broomfield then presented his ticket to Agent Thrower,
who confirmed the itinerary was Los Angeles, California, to St. Louis, Missouri,
and then returned the ticket to Mr. Broomfield.
Agent Thrower knew the bus trip to St. Louis from Los Angeles was
approximately two days coming and two days going. Based on his training and
experience, Agent Thrower knew Mr. Broomfield’s small gym bag was
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insufficient for such a trip, including a one-week stay in St. Louis, but was
consistent with a quick turn-around trip to deliver controlled substances.
Accordingly, Agent Thrower proceeded to ask Mr. Broomfield if he packed the
gym bag. Mr. Broomfield replied that he had. (When asked if he had any guns
or drugs in the bag, Mr. Broomfield said no. Agent Thrower then asked if he
could search the bag. Mr. Broomfield replied “sure.”
Agent Thrower placed the bag in the first vacant seat on the passenger
side, as the seat next to Mr. Broomfield was occupied. Inside the bag, Agent
Thrower discovered a white sock, balled-up, with a hard object inside. While
still holding the sock, Agent Thrower noticed Mr. Broomfield was visibly
nervous. He was moving his hands and arms beneath the rear of the seat in front
of him and his eyes were tearing. For safety purposes, Agent Thrower asked Mr.
Broomfield to place his hands on the top of the seat in front of him where Agent
Thrower could see them. Agent Thrower proceeded to open the sock and found
an object covered with masking tape. Beneath the masking tape and multiple
layers of plastic bags and wrappings were several small plastic bags containing a
hard off-white rock substance. Based on his training and experience, Agent
Thrower believed the substance to be crack cocaine.
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Agent Thrower arrested Mr. Broomfield, handcuffed him, and escorted him
off the bus. Two Shawnee County deputies standing outside, near the bus, but
not visible to Mr. Broomfield from his seat, helped Agent Thrower escort Mr.
Broomfield into the cargo area of the bus depot. Agent Thrower advised Mr.
Broomfield of his Miranda rights and asked Mr. Broomfield if he would like to
talk with him about the crack cocaine. Mr. Broomfield stated that the socks
containing the cocaine were his, and that he was traveling to St. Louis to help his
niece, Shyndona Dickerson, drive a car back to Los Angeles.
Drug Enforcement Agency experts tested the substance found in the sock
and identified it as 139.9 grams of cocaine base. They identified fingerprints
found on the plastic wrapping containing the cocaine as Shyndona Dickerson’s.
Further investigation ultimately resulted in a two-count indictment charging both
Mr. Broomfield and Ms. Dickerson with (1) possession with intent to distribute
crack cocaine, and (2) conspiracy to possess with intent to distribute crack
cocaine. Ms. Dickerson pleaded guilty to the conspiracy count and testified
against Mr. Broomfield.
After hearing the evidence, including Ms. Dickerson’s testimony
concerning her prior drug conviction and her arrangement with Mr. Broomfield
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to deliver crack cocaine to Vincent “Marlo” Grimes for sale and distribution in
St. Louis, the jury acquitted Mr. Broomfield of conspiracy, but convicted him of
possession with intent to distribute cocaine. This appeal followed the district
court’s denial of Mr. Broomfield’s post-trial motion for a judgment of acquittal
or a new trial.
ANALYSIS
Suppression of Evidence - Bus Interdiction
Mr. Broomfield claims his consent to search the gym bag was not voluntary
and the search was unreasonable because, taking into account all of the
circumstances surrounding his encounter with Agent Thrower, a reasonable
person in the same situation would not have felt free to decline Agent Thrower’s
search request or otherwise terminate the encounter. He argues the district court
therefore erred by denying his motion to suppress. He seeks a new trial without
the evidence seized as a result of the search.
When reviewing a motion to suppress ruling, “we review de novo the
ultimate determination of Fourth Amendment reasonableness.” United States v.
Little , 60 F.3d 708, 712 (10th Cir. 1995). Certainly, however, the credibility of
the witnesses and the weight given to the evidence presented at the motion
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hearing, as well as the inferences and conclusions drawn therefrom, remain
matters for the trial judge. Id. Where, as here, there are no express factual
findings, we uphold the district court’s ruling if there is any reasonable view of
the evidence to support it. United States v. Gonzalez-Acosta , 989 F.2d 384, 387
(10th Cir. 1993) (quotation marks and citations omitted).
Mr. Broomfield relies on the following circumstances to demonstrate the
involuntariness of his consent: (1) the cramped confines of bus travel,
exacerbated by the fact he was sitting in the back seat with no clear path to or
along the aisle during the encounter; (2) the fatigue and general discomfort
experienced by cross-country bus travelers; (3) his trip did not terminate in
Topeka; (4) Agent Thrower displayed his badge; and (5) Agent Thrower did not
act to defuse the anxiety of the situation or in any way advise him he had a right
to refuse consent. Mr. Broomfield argues no reasonable person would feel free
to refuse a search request under these circumstances; thus, his consent to search
was not voluntary. In support of his argument, Mr. Broomfield cites two
Eleventh Circuit bus cases, United States v. Washington , 151 F.3d 1354 (11th
Cir. 1998) and United States v. Guapi , 144 F.3d 1393 (11th Cir. 1998), and
draws a loose analogy to a Tenth Circuit train case, United States v. Little , 18
F.3d 1499 (10th Cir. 1994) ( en banc ).
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First, we must agree with Mr. Broomfield that an analogy to Little is
difficult, at best. While Ms. Little did occupy a small roomette on a train, she did
not consent to the search of her bag when encountered by a Drug Enforcement
Administration agent in the roomette. Rather, she agreed to accompany the agent
to the baggage area of the train, where she declined to consent to a search of her
bag. Ms. Little was arrested based on the alert response of a trained narcotics
dog to her luggage. Little , 18 F.3d at 1501-02. These, among numerous other
differences, make Little factually distinguishable.
Little does, however, articulate the applicable test to determine whether
Mr. Broomfield’s encounter with Agent Thrower was consensual:
“[I]n order to determine whether a particular encounter constitutes a
seizure, a court must consider all the circumstances surrounding the
encounter to determine whether the police conduct would have
communicated to a reasonable person that the person was not free to
decline the officers’ requests or otherwise terminate the encounter.”
Little , 18 F.3d at 1503 (quoting Florida v. Bostick , 501 U.S. 429, 439 (1991)).
We note Mr. Broomfield does not dispute the application of this objective, fact
specific test. He simply argues the test as applied to the facts of his case
demonstrate he did not voluntarily consent to the search. Having carefully
studied the record, we must disagree.
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In Bostick , a bus interdiction case much like this one, the Supreme Court
deemed the following factors relevant to the Fourth Amendment reasonableness
determination: (1) whether the agent advised the defendant he had the right to
refuse consent, (2) whether the agent in any way threatened the defendant ( i.e. ,
the display of a weapon and/or the nature of the questioning), and (3) the
particular location of the encounter. 501 U.S. at 436-37; see also United States
v. Hill , ___ F.3d ___, ___, 1999 WL 1243093 *4 (10th Cir. Dec. 21, 1999)
(factors relevant to whether a reasonable person would feel free to terminate an
encounter with police include “the threatening presence of several officers; the
brandishing of a weapon by an officer; some physical touching by an officer; use
of 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.” (Quotation marks and citations
omitted.)). No one factor is dispositive. Bostick , 501 U.S. at 439; Hill , ___ F.3d
at ___, 1999 WL 1243093 at *4. Rather, we must “tak[e] into account all of the
circumstances surrounding the encounter” to determine whether “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.” Bostick , 501
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U.S. at 436, 439 (quotation marks and citation omitted). Any analysis
approaching a per se rule in this as in other Fourth Amendment contexts is
prohibited. Id. at 439-40 (rejecting a per se rule that searches within the confines
of a bus are unconstitutional); see also Ohio v. Robinette , 519 U.S. 33 (1996)
(rejecting a per se rule that officers must inform a lawfully seized defendant of
his right to refuse before asking for consent to search his vehicle).
While we understand the restriction of movement, fatigue and anxiety Mr.
Broomfield undoubtedly experienced during the Topeka bus interdiction, this is
not a case like Guapi , in which two officers, one of whom was in uniform,
boarded the bus before the passengers could exit. Moreover, in Guapi , the
uniformed officer announced to all the passengers that the officers wished to
check on-board cargo for contraband and told the passengers that “[w]ith [their]
consent and cooperation” he would like for them to open their on-board luggage
for inspection. He then proceeded to conduct searches from the front toward the
back of the bus while the second officer remained at the front of the bus, thereby
creating the impression a passenger would be prevented from exiting the bus
until he complied with the officers’ request to search luggage. 144 F.3d at 1393-
94. These circumstances understandably warranted a finding of coercion.
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In contrast, the record in this case reflects that passengers who desired to
leave the bus did so; only then did Agent Thrower board the bus, alone. Agent
Thrower testified he was dressed casually and proceeded to the back of the bus,
not because he had targeted Mr. Broomfield, but because that was what he had
been trained to do. Certainly, beginning at the back of the bus would avoid the
situation criticized in Guapi by creating a clear path for any passenger who
wanted to exit the bus after the agent boarded to do so. For better or worse, Mr.
Broomfield sat at the very rear of the bus -- his freedom of movement was the
natural result of his choice of transportation and seat assignment, not a result of
Agent Thrower’s conduct. See Bostick , 501 U.S. at 436.
Agent Thrower further testified he spoke to Mr. Broomfield individually,
and, while he displayed his badge and did not inform Mr. Broomfield of his right
to refuse consent, he spoke to him in an even tone of voice, returned his ticket
within a short period of time, and made no coercive or threatening gestures or
comments. He carried a gun, but it was not visible to Mr. Broomfield or the
other passengers who remained on the bus. Agent Thrower observed that prior to
consenting to the search, Mr. Broomfield did not appear to be suffering from a
mental disease or defect, to be under the influence of alcohol or drugs, or under
any type of coercion or distress. Agent Thrower admitted that due to the seating
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arrangement at the rear of the bus, Mr. Broomfield would have had to step in
front of the woman seated next to him and pass behind him if he wanted to exit
the bus. However, those space constraints were an inherent aspect of Mr.
Broomfield’s chosen mode of transportation. There is no evidence Agent
Thrower’s conduct or position on the bus conveyed the message that compliance
with his requests was required.
We recognize the Eleventh Circuit relied significantly on the fact the
officers in Guapi and Washington did not specifically inform individual
passengers they had a right to refuse consent. Indeed, in our opinion, that factor
was dispositive in Washington , thus creating a per se rule that authorities must
notify bus passengers of the right to refuse consent before questioning those
passengers and asking for consent to search luggage. See Washington , 151 F.3d
at 1357-58 (Black, Circuit Judge, dissenting). Although we agree such
notification is a relevant fact to consider, it cannot be dispositive of the
reasonableness inquiry. See id. at 1358; Bostick , 501 U.S. at 439. As the dissent
in Washington noted, “[s]hort of telling the passengers of the right to refuse
consent, it is difficult to conceive of any actions the[] officers could have taken
to make th[e] search any more reasonable.” Washington , 151 F.3d at 1358
(Black, Circuit Judge, dissenting). This result renders the soundness of the
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Washington opinion questionable.
It is similarly difficult to imagine how authorities could ever conduct a
reasonable search under the circumstances Mr. Broomfield relies on to prove
coercion, unless we establish a per se rule that authorities must either notify bus
passengers they have the right to refuse consent or, due to the unavoidable space
constraints, refrain altogether from questioning passengers seated in the far rear
seat. Either approach might arguably constitute good policy; however, imposing
such a rule would transgress Supreme Court precedent. The location of the
encounter is but one factor in the totality of the circumstances, and, under the
totality of Mr. Broomfield’s circumstances, the bus setting as a whole and the
details of Agent Thrower’s actions do not indicate coercion. Moreover, there is
nothing unlawful about the practice of approaching individuals and asking them
potentially incriminating questions, Bostick , 501 U.S. at 439, and there is no per
se rule requiring law enforcement officials to specifically advise those
individuals they do not have to answer police questions. Hill , ___ F.3d at ___,
1999 WL 1243093 at *5; Little , 18 F.3d at 1505. For these reasons, we believe
the evidence supports the district court’s denial of Mr. Broomfield’s motion to
suppress evidence, and conclude Agent Thrower’s search was reasonable under
the totality of the circumstances.
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Prosecutorial Misconduct
Mr. Broomfield claims the district court erred by failing to sustain an
objection to the government’s closing argument, which he says impermissibly
offered personal opinion as to the truthfulness of its witnesses, Agent Thrower
and Shyndona Dickerson. Mr. Broomfield characterizes this issue as a mixed
question of fact and law subject to de novo review.
We begin our analysis of this claim by clarifying the appropriate standard
of review. In the context of this case, because Mr. Broomfield
contemporaneously objected to the prosecutor’s closing argument statements, and
subsequently unsuccessfully moved for a new trial based, in part, on allegations
of prosecutorial misconduct, he is not entitled to a de novo ruling on the
prosecutorial misconduct objection. Rather, we review the district court’s denial
of Mr. Broomfield’s motion for a new trial for an abuse of discretion. United
States v. Villa-Chaparro , 115 F.3d 797, 803 (10th Cir.), cert. denied , 522 U.S.
926 (1997). Applying this standard, we conclude the district court did not abuse
its discretion.
The statements Mr. Broomfield challenges were made during the
government’s rebuttal argument, when, in response to defense counsel’s closing
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argument that “this is a case about perjury,” and repeated characterization of Ms.
Dickerson’s testimony as “lies”, the prosecutor told the jury:
The criminal justice system that you’re a part of as jurors in
this case is not a perfect system, but I submit to you it’s the best
system in this world, and it is a system that is based upon the truth,
it’s based upon justice, and it’s based upon integrity. Walt Thrower
told you the truth and has no reason to lie to you. Shyndona
Dickerson told you the truth. And she was told that if she lied she
would face the maximum penalty on that charge and a perjury
charge.
....
Having heard the truth consistent with your oaths, we ask you to
uphold the integrity of the system.
Mr. Broomfield asserts that while the prosecutor’s reference to the truthfulness
obligation of a witness in her plea agreement was permissible, “[t]he further
argument that the detective and the informant were telling the truth was clearly
impermissible.” According to Mr. Broomfield, those statements “put the
government’s attorney behind the witness[es], vouching for their credibility,”
and, together with the prosecutor’s further reference to the integrity of the
system, “violated [his] substantial rights to a fair trial.”
We typically give prosecutors considerable latitude where, as here, defense
counsel arguably “invites” a response. See Villa-Chaparro , 115 F.3d at 803.
Nevertheless, we want to take this opportunity to advise prosecutors against what
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we perceive to be an increasing willingness to unnecessarily push the envelope of
improper vouching. 1
As the district court properly noted, however, even
assuming the government’s argument in this case was improper, it does not
warrant a new trial unless it influenced the jury’s verdict. See id. Considering
the trial as a whole, the extent of the alleged misconduct, and the role of the
alleged misconduct, see Gabaldon , 91 F.3d at 94, we agree with the district court
it did not.
In reading the record, it is clear the challenged statements were made in the
context of rebutting defense counsel’s full bore attack on Ms. Dickerson’s
credibility. Prior to making the challenged statements, the prosecutor told the
jury they were entitled to disbelieve Ms. Dickerson, though he believed it would
be inconsistent with all the evidence. Prior to deliberations, the court repeatedly
1
We remind prosecutors,
“[t]he United States Attorney is the representative not of an ordinary
party to a controversy, but of a sovereignty whose obligation to
govern impartially is as compelling as its obligation to govern at all;
and whose interest, therefore, in a criminal prosecution is not that it
shall win a case, but that justice shall be done.... He may prosecute
with earnestness and vigor – indeed, he should do so. But, while he
may strike hard blows, he is not at liberty to strike foul ones.”
United States v. Gabaldon, 91 F.3d 91, 94-95 (10th Cir. 1996) (quoting Berger v.
United States, 295 U.S. 78, 88 (1935)).
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instructed the jurors that they were the sole and exclusive judges of the
credibility of each of the witnesses called to testify. The court also instructed the
jurors that the statements and arguments of counsel are not to be considered
evidence in the case. Moreover, as the district court explained, Ms. Dickerson’s
testimony was used primarily to support the conspiracy charge of which Mr.
Broomfield was acquitted. Ms. Dickerson was not present when Mr. Broomfield
was arrested and consequently provided little valuable evidence to support the
possession charge. Any improper argument about the truthfulness of Ms.
Dickerson’s testimony therefore had little or no effect on the outcome of the
possession charge. Agent Thrower’s testimony concerning the facts surrounding
Mr. Broomfield’s cocaine possession was never rebutted. Under these
circumstances, we conclude the prosecutor’s closing statements were not so
egregious as to influence the jury to convict Mr. Broomfield on improper
grounds.
For the foregoing reasons, the district court’s order denying the motion to
suppress and denying Mr. Broomfield a new trial are AFFIRMED .
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