dissenting.
I regret I cannot join the majority’s decision directing suppression of the narcotics seized from appellant. To do so, I would have to be able to conclude either (1) that the trial judge, though having heard J.M.’s explanation of the events and viewed his demeanor, clearly erred in finding as a fact that he freely consented to the search, or (2) that, as a matter of law, the consent was involuntary because presumptively every consent by a juvenile to a search is coerced unless (a) he has been advised of his right to refuse consent or (b) the government can show that he has had “extensive experience with the law or the police.” I cannot reach the first conclusion on this record; and, more importantly, I cannot join the majority in superimposing a presumption — the nearest thing to a per se rule of involuntariness — on a determination which the Supreme Court has said is factual and individual, and hence entrusted to the trier of fact in the first instance. I therefore respectfully dissent.
I.
J.M., a month and a half shy of fifteen at the time, was arrested en route to Wilmington, North Carolina from New York carrying a quarter pound of crack cocaine taped to his body. At the suppression hearing, the trial judge heard Detective Zattau explain how he approached J.M. and, in a conversational voice, ask J.M.’s point of origin and destination and to see his ticket; next ask if the youth had heard his previous remarks over the speaker system and whether he was carrying drugs or weapons; and finally, after J.M. allowed a search of his bag, ask whether he would allow a frisk of his person, to which the youth responded by turning towards the detective and raising his arms. The judge then heard appellant testify, over some twenty transcript pages, that he had consented to the search of his bag because he knew it contained nothing illegal and feared drawing suspicion to himself by refusing, but that he refused consent to the pat-down of his person, after which Zattau “just started patting me down” anyway. Having heard all of this testimony, and fully aware of J.M.’s age and education, the judge found that Detective Zattau’s behavior had not been calculated to overbear appellant’s will, and that J.M. had consented to the pat-down and done so voluntarily. “[Cjonsistent with his desire to deflect suspicion from himself,” the judge reasoned, J.M.
turned to the officer and cooperated and raised his hands and I think hoped that *977by golly, maybe he won’t find it.... [J.M.] consented to everything that went right up and down the line_ [J.M.’s consent] was part of the pattern of his whole reaction to the situation that was in front of him.
II.
The majority “reeognize[s] that the judge made what he may have viewed as a factual finding that J.M. consented to the search.” Ante at 975. It also purports to recognize, in keeping with the trial judge’s “view,” that the voluntariness of a consent to search is “a question of fact,” ante at 966 (quoting Schneckloth v. Bustamonte, 412 U.S. 218, 248-49, 93 S.Ct. 2041, 2058-59, 36 L.Ed.2d 854 (1973)),1 and that “the trial judge’s findings with respect thereto will be set aside only if clearly erroneous.” Id. (citing Kelly v. United States, 580 A.2d 1282, 1288 (D.C.1990)). See also Childress v. United States, 381 A.2d 614, 616 (D.C.1977) (“we are bound to uphold the trial court’s finding that a search was consensual unless such a finding is clearly erroneous”). Finally, the majority “recognize[s] that the judge had the opportunity to assess the intangible atmospherics of the poignant scenario that unfolded before him and to observe flesh and blood human beings, while we have access only to a transcript_” Ante at 967. Nevertheless, the majority concludes that all of this is essentially beside the point, because though it will “defer to the trial judge’s evidentiary findings and assessment of credibility,” id., it holds that “the key inquiry on which we think this case depends, namely, the effect of the detective’s failure to advise J.M. of his right to refuse to consent to a search,” is “predominantly a question of law," at least “under circumstances such as those here presented, when J.M. was only fourteen years old.” Id. at 967 (emphasis added). See also id. at 975 (“the principal issue ..., the effect of J.M.’s age and of the failure of the police to advise him of his right to withhold consent, is primarily one of law”). In other words, the facts (a) that J.M. was not told he was free to refuse consent and (b) that he was only fourteen are henceforth removed from the totality of facts the judge considers in deciding the issue of consent and endowed with “predominantly” legal significance. They in fact dictate a legal overlay which the majority imposes on every determination of consent by a juvenile, at least one of “tender years.”
[W]e hold that where a juvenile, especially one as young as J.M., has not been advised of his rights, the burden on the prosecutor to establish that consent to a search was a voluntary one is a heavy one, which cannot be sustained by showing only that no weapons were displayed and that no threats were made. In the absence of proof that a juvenile of that age had sufficiently extensive prior experience with the law or the police to compensate, in the real world, for the greater maturity and worldly wisdom of an adult, we think that a purported consent to search under circumstances comparable to those presented by this record should ordinarily be invalidated.
Ante at 973.
I do not disagree that, even as to an adult, the government’s burden of proving consent is a heavy one in the sense that the trial judge must resolve all ambiguities in the record against finding consent. Schneckloth, 412 U.S. at 222, 229, 93 S.Ct. at 2045, 2048 (consent must be given “the most careful scrutiny”); Judd v. United States, 89 U.S.App.D.C. 64, 66, 190 F.2d 649, 651 (1951) (consent must be shown by “clear and positive testimony”). Nor do I dispute the obvious point that consent cannot be shown merely by the fact “that no weapons were displayed and ... no threats *978were made.” Schneckloth makes clear that the consent inquiry must consider “all the surrounding circumstances — both the characteristics of the accused and the details of the interrogation,” 412 U.S. at 226-27, 93 S.Ct. at 2047-48; and among these are “the youth of the accused,” his “lack of education,” and “the lack of any advice ... of his constitutional rights.” Id. I disagree with the majority fundamentally, however, when it extracts these latter factors — J.M.’s youth and the lack of advice to him that he could refuse consent— from the total complex of facts the judge considers in finding consent vel non, and elevates them to legal determinants that henceforth should “ordinarily ... invalidate[ ]" consent unless the government can show some ill-defined prior experience with the law or police on the juvenile’s part.2
Though the majority insists to the contrary, I consider its analysis intolerably close to “the adoption of iron-clad rules based on only some of the relevant facts,” ante at 973, a concern the majority dismisses because in its view “some circumstances are more equal than others.” After Schneckloth and Florida v. Bostick, — U.S.-, 111 S.Ct. 2382, 115 L.Ed.2d 389 (1991), I believe it is error for this court to isolate one or more factors from the totality of facts before the judge in any consent determination and hold that presumptively (“ordinarily”) the presence or absence of these factors, as a matter of law, yields the correct result.3 Under the majority’s formula, despite Schneckloth, the failure to advise J.M. of his right to refuse consent trumps all other factors the judge properly considered such as the length of the contact and questioning, J.M.’s explanation of his behavior and what that said about his relative maturity, and the absence of any threats or overbearing conduct by the police.4 The majority does not hold that the judge failed to consider the two factors it singles out. Rather, its dissatisfaction is with Schneckloth’s “totality of the circumstances” test which it considers impossibly “amorphous” unless courts “develop some rational methods of according some circumstances greater weight than others.” Ante at 973 n. 15. The majority thus undertakes, in effect, to reform the Supreme Court’s consent analysis.
Nothing in Schneckloth implies that trial judges should mechanically assign facts and circumstances equal weight in evaluating consent. But neither does Schneckloth (nor Bostick) in my view justify an appellate court’s segregating out factors such as age and non-advice of rights and holding, as a matter of law, that these will invalidate consent unless a specific countervailing factor — prior experience with the law or police — is also present. I cannot join in this absolutization of factors which, with the best intention of providing a “firm principle” for analysis, ante at 973 n. 15, subjects an intensely factual weighing of circumstances to presumptive rules that may foreordain an unjust result.
To be sure, the majority highlights the fact that J.M. was not merely a juvenile but a youngster of fourteen, implying that the combination of youth and lack of advice of rights may be less decisive as the age of the person whose consent is sought increases. But the majority’s lengthy discussion, ante at 970-973, of how society and the law treat “juveniles,” imposing an *979equal obligation on officials to “take notice of their ... disabilities,” ante at 971 (citation omitted), provides no guidance as to when the presumption that rules the consent inquiry is lifted as age increases. Our Youth Rehabilitation Act, for example, generally renders eligible for “youth offender” treatment a person less than 22 years old, D.G.Code § 24-801(6) (1989). Also, to paraphrase the majority, it is apparent to any reader of the newspapers that some 14-year-olds are “more 14 than others.” In any case, no matter how closely the juvenile defendant approaches majority, the trial court henceforth will know that its assessment of two factors bearing on consent — the effect of youth and non-advice of rights — will be reviewed differently than all others by the appellate court, i.e., “primarily [as issues] of law,” ante at 975. This thumb on the judicial scale will thus remain to influence, and even determine, an inquiry which the Supreme Court has emphasized should consider all of the circumstances and lead to a factual finding by the body best situated to make it.
Here the trial judge heard J.M. testify at length barely six weeks after the events at issue. After observing the youth’s explanation of the events and demeanor, and crediting Detective Zattau’s description of the questioning, the judge found that “the pattern of [J.M.’s] whole reaction” to the questioning was not submission to authority but an attempt “to deflect suspicion from himself” in hopes of avoiding detection. The majority finds it nearly impossible to accept that a boy of J.M.’s years could consent out of calculation, however ill-founded, rather than intimidation and ignorance of his rights. In part this may reflect a belief that no one, adult or child, carrying drugs on his person would freely consent to a pat-down. But that proposition has been rejected by the Supreme Court. Bostick, 111 S.Ct. at 2388 (“the ‘reasonable person’ test presupposes an innocent person” (emphasis by Court)).5 It also may reflect dissatisfaction with Schneckloth’s rejection of the “knowing and intelligent waiver” test for Fourth Amendment consents. See ante at 973 n. 15.
At all events, the majority goes on to describe the pressures one in J.M.’s position “could have” felt to consent involuntarily, including the “frightening private pressures” police action “could generate” in the form of ostracization by fellow passengers if he (unlike they) did not cooperate. Ante at 974. It is not apparent, first, how these pressures would have been any different had J.M. been advised of his right to withhold consent. Moreover, underlying the majority’s description of the “adverse consequences” J.M. could anticipate from refusing to consent lies an apparent skepticism about the possibility of consent in these police-citizen encounters, involving adults or juveniles, that makes its adoption of special rules for juvenile consent inevitable, but correspondingly flawed. We are told, for example, that “most reasonable people would believe that the police have considerable power and that it is best not to defy or make enemies of officers,” ante at 975; and so it is doubtful that “any reasonable person could expect an act of defiance \i.e., a refusal to consent] to bring him no unfavorable consequences,” id. Translated into practice, of course, these assertions would cast grave doubt on the legitimacy of our decision in Kelly v. United States, supra, and the large number of decisions upholding consent on which it relied.6 The possibility that refusal to consent will itself generate police “suspicion” does not alter the fact, as the Supreme Court has repeatedly stated, that “a refus*980al to cooperate, without more, does not furnish the minimal level of objective justification needed for a detention or seizure.” Bostick, 111 S.Ct. at 2387. I do not share the majority’s perception that “reality” may be otherwise or at least that a reasonable person — particularly a juvenile — will apprehend it is so.
Having said this, I nonetheless agree with the trial judge’s recognition that “in these types of encounters ... there is an inherent authority ... that the officer carries with him” in asking permission to search. Consequently, in circumstances where the individual has not been told he is free to refuse consent, and where in addition he is as young as J.M., the Supreme Court’s teaching applies full force that “the voluntariness of any statement taken under those conditions [must be] carefully scrutinized to determine whether it was in fact voluntarily given.” Schneckloth, 412 U.S. at 248, 93 S.Ct. at 2058. But unlike the majority, as I have explained, I do not believe Schneckloth allows this court to isolate these or any individual circumstances and hold that by themselves, as a matter of law, they ordinarily must determine the consent issue. Because that is the essence of the majority’s holding, and because I also do not believe the trial judge’s finding that J.M.’s consent was voluntary is without support in the evidence, D.C.Code § 17-305 (1989), I respectfully dissent from the reversal of the trial court’s judgment.
. To be accurate, the majority says that "[t]he voluntariness of a consent to search ... has been characterized as ‘a question of fact,’ ” citing Schneckloth, as though the Supreme Court's "characterization” of this constitutional issue is no different than that of any other court or commentator. The Supreme Court’s repeated statement that “[v]oIuntariness is a question of fact to be determined from all the circumstances,” 412 U.S. at 248-49, 93 S.Ct. at 2059; id. at 227, 93 S.Ct. at 2047, is a holding this court may not distance itself from by reformulating it as a “characterization."
. Nor can I find in the majority’s reasoning a limiting principle that explains why other disabilities besides youth — such as mental retardation and apparent lack of education, to name just two — will not similarly be reviewed by this court henceforth as "predominantly legal” factors in their bearing on consent. See ante at 972 (citing and applying to the consent analysis State v. Carillo, 156 Ariz. 125, 136, 750 P.2d 883, 894 (1988)).
. See, e.g., Schneckloth, 412 U.S. at 226, 93 S.Ct. at 2047 (“The significant fact about all of these decisions [on voluntariness] is that none of them turned on the presence or absence of a single controlling criterion; each reflected a careful scrutiny of all the surrounding circumstances"); Bostick, 111 S.Ct. at 2386-87 (rejecting “per se rule” that "cramped confines of bus” invalidates consent; “a court must consider all the circumstances surrounding the encounter”).
.Although the majority notes that "the judge never discussed or even mentioned J.M.’s age,” ante at 965, it wisely attaches no legal significance to that fact in view of the judge’s obvious familiarity with Schneckloth and the decisions cited to him applying its consent standards.
. See also McNeil v. Wisconsin, — U.S. -, 111 S.Ct. 2204, 2209, 115 L.Ed.2d 158 (1991) ("[S]uspects often believe that they can avoid the laying of charges by demonstrating an assurance of innocence through frank and unassisted answers to questions”).
. For example, United States v. Nurse, 286 U.S.App.D.C. 303, 305-08, 916 F.2d 20, 22-25 (1990); United States v. Smith, 284 U.S.App.D.C. 64, 65-66, 901 F.2d 1116, 1117-18, cert. denied, -U.S. -, 111 S.Ct. 172, 112 L.Ed.2d 136 (1990); United States v. Joseph, 282 U.S.App. D.C. 102, 105-06, 892 F.2d 118, 121-22 (1989); United States v. Baskin, 280 U.S.App.D.C. 366, 369-70, 886 F.2d 383, 386-87 (1989), cert. denied, — U.S.-, 110 S.Ct. 1831, 108 L.Ed.2d 960 (1990).