In re J.M.

ON REHEARING EN BANC

FARRELL, Associate Judge:

On reconsideration by the court en banc, we have decided to remand this case for explicit findings by the trial judge with respect to the key factual issue presented, namely, the bearing of appellant’s age— fourteen at the time of his arrest — upon the voluntariness of his consent to the search of his person.

I.

Appellant was adjudicated delinquent based upon a finding that he had possessed cocaine with intent to distribute it (D.C.Code § 33-541(a) (1988)). Prior to trial, he moved to suppress the cocaine on grounds that it had been seized from him in violation of the Fourth Amendment. At the hearing on the motion, the facts established were essentially as follows. On October 31, 1989, Detective Donald Zattau and a team of Metropolitan Police officers were at the Greyhound-Trailways bus station in Northeast Washington, D.C. Their assignment was to question, and presumably search if they had cause or obtained consent, passengers arriving in or passing through Washington from New York City. At about 2:30 a.m. a bus arrived from New York en route to Wilmington, North Carolina. After the driver announced a ten-minute rest stop, Detective Zattau and two other officers boarded the bus dressed in civilian attire. Using the bus speaker system, Zattau announced their identity and purpose, explaining that they were part of a drug interdiction group that interviewed passengers arriving from New York because it was a “source supply of drugs,” and in the past they had found that drugs were transported by bus passengers. After questioning other passengers, Zattau approached J.M., who was seated three-quarters of the way to the rear next to a window.

The detective introduced himself and, in a conversational voice, asked J.M.’s point of origin and destination and if he could see his bus ticket; he also asked if J.M. had heard the announcement over the speaker system, to which the youth replied that he had and understood it. Zattau asked if J.M. was carrying drugs or weapons, and when J.M. replied no, the detective asked if he could search the bag J.M. was carrying with him. J.M. consented, and the search revealed nothing. Zattau then asked if J.M. had drugs or weapons on his person; when J.M. said no, the officer asked if he would mind if he patted him down. In response J.M. turned toward the officer and raised his arms while still seated. Zat-tau patted him down and felt a hard object on his right side next to his rib cage. He lifted the shirt and discovered a plastic bag containing crack cocaine taped to J.M.’s body. J.M. was arrested.

J.M. testified that he was fourteen years old at the time of his arrest and fifteen at the time of the trial one and a half months later. He lived in Brooklyn, New York, and attended ninth grade. He acknowledged that he had consented to the search of his bag because he knew it contained nothing illegal and feared that if he did not consent, the police would become suspicious and investigate. He denied, however, that he had given Zattau permission to frisk him, asserting that the officer “just started patting me down.” He made no effort to stop the frisk because if he had done so, the officers “would have got[ten] more suspicious at me.”

In justifying the search, the government did not claim that Detective Zattau had reason to suspect appellant of a crime, but instead argued that there had been no seizure of his person within the Fourth *499Amendment since he had freely consented to the pat-down. Appellant, by contrast, argued that he had been seized without articulable suspicion because a reasonable person in his shoes would not have felt free to reject the officers’ request. He argued, in addition, that under the totality of the circumstances his consent to the search was involuntary because he was fourteen years old at the time and “was traveling alone[,] and certainly under those circumstances, alone, black, barely a teenaged youth, would feel pressure when the police came up to him.”

The trial judge denied the motion to suppress. He found, first, that J.M. had not been seized within the meaning of the Fourth Amendment merely because he was approached and questioned, and his consent to a search obtained, in the close confines of a bus interior, when there was no indication that the actions of Detective Zattau had overborne appellant’s will. The judge further credited Zattau’s testimony that he had asked for and received J.M.’s permission before patting him down, and found that the consent was voluntary. “[Cjonsis-tent 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 by 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.

With respect to the failure to advise J.M. that he could withhold his consent, the judge stated that he thought “the law is clear” that the detective was “not obliged, in fact, to undercut his effort by saying, oh, you don’t have to answer any questions, you can walk away from me immediately, you can in fact ignore me and, indeed, I would advise you to do that.” Significantly (in light of our discussion later), while concluding that J.M. had consented in order “to deflect suspicion from himself,” the judge did not link this conclusion to any express findings about J.M.’s maturity or sophistication for his age, as shown by his conduct at the time of the search or his testimony and demeanor at the hearing. The judge did recognize that, even in the case of adults, “in these types of encounters ... there is an inherent authority, obviously, that the officer carries with him when he is conducting this kind of an interview and asking to search a bag,” but found that this authority had not coerced J.M. into consenting against his will.

II.

We confront in this case two conceptually distinct yet, in practice, often overlapping issues. First, at the time Detective Zattau asked for and received appellant’s consent to a pat-down search, did the totality of the officer’s conduct amount to a seizure under the Fourth Amendment? Second, assuming appellant was not seized, was his consent to the pat-down voluntary so as to make the search reasonable under the Fourth Amendment? Florida v. Jimeno, — U.S. -, -, 111 S.Ct. 1801, 1803, 114 L.Ed.2d 297 (1991). There will be instances, exemplified by this case and Florida v. Bostick, — U.S. -, 111 S.Ct. 2382, 115 L.Ed.2d 389 (1991), where the overlap of these issues — and the congruence between the tests governing their resolution — is nearly complete. Nevertheless, we agree with the United States Court of Appeals for the District of Columbia Circuit that, “[although there is overlap in these tests, they are not identical,” United States v. Maragh, 282 U.S.App.D.C. 256, 261, 894 F.2d 415, 420 (emphasis by court), cert. denied, 498 U.S. 880, 111 S.Ct. 214, 112 L.Ed.2d 174 (1990).1 The “crucial test” *500for determining whether a person has been seized “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.’ ” Bostick, — U.S. at -, 111 S.Ct. at 2387 (emphasis added) (quoting California v. Hodari D., — U.S. -, -, 111 S.Ct. 1547, 1551, 113 L.Ed.2d 690 (1991)). By contrast, the issue of whether a person freely consented to a search “focuses on the particular individual rather than on a hypothetical reasonable person.” United States v. Lewis, 287 U.S.App.D.C. 306, 313, 921 F.2d 1294, 1301 (1990). In that inquiry, all of the circumstances must be considered including both the nature of the police conduct and “the possibly vulnerable subjective state of the person who consents,” Schneckloth v. Bustamonte, 412 U.S. 218, 229, 93 S.Ct. 2041, 2049, 36 L.Ed.2d 854 (1973), as “[t]he very object of the inquiry ... [is] the nature of a person’s subjective understanding.” Id. at 230, 93 S.Ct. at 2049.

Given the overlapping but distinct nature of these two inquiries, this court has consistently applied a different standard of review in resolving them. We have reviewed the determination of seizure as a question of law de novo, Guadalupe v. United States, 585 A.2d 1348, 1352 n. 7 (D.C.1991), although “defer[ring] to the trial judge’s findings of fact unless clearly erroneous.” Id. But in light of the Supreme Court’s repeated emphasis that the voluntariness of a consent to search is “a question of fact to be determined from all the circumstances,” Schneckloth, 412 U.S. at 248-49, 93 S.Ct. at 2059; id. at 227, 93 S.Ct. at 2047, we have considered ourselves “bound to uphold the trial court’s finding that a search was consensual unless such a finding is clearly erroneous.” Kelly v. United States, 580 A.2d 1282, 1288 (D.C.1990) (quoting Childress v. United States, 381 A.2d 614, 618 (D.C.1977)); see also D.C.Code § 17-305(a) (1989).

We adhere to this distinction today. No party before us, including the two amici, has urged a change in the standard of review concerning the seizure issue, and we are not persuaded there is reason to depart from our present standard. See United States v. Maragh, 282 U.S.App.D.C. at 258, 894 F.2d at 417 (“seizure” inquiry a question of law); but see id. at 262-63, 894 F.2d at 421-22 (Mikva, J., dissenting) (question whether police seized person “essentially factual” and should be reviewed under clearly erroneous standard). On the other hand, amicus the Public Defender Service urges that, in light of two recent Supreme Court decisions, Miller v. Fenton, 474 U.S. 104, 106 S.Ct. 445, 88 L.Ed.2d 405 (1985), and Florida v. Jimeno, supra, the issue of consent under the Fourth Amendment henceforth must be viewed as a question of law to be reviewed by the appellate court de novo (with deference to the trial court as to secondary or subsidiary issues of fact). Though this argument is made forcefully, we reject it.2 *501Until the Supreme Court signals plainly that the voluntariness of consent for Fourth Amendment purposes is no longer an issue of fact to be reviewed under the clearly erroneous standard, we shall continue to ally ourselves with every federal court of appeals in applying that standard of review.3

III.

We first conclude that J.M. was not seized when Detective Zattau asked him questions and asked permission to search his bag and then pat him down. In reaching that conclusion, we do not on this record consider the fact that J.M. was fourteen years old and hence possibly vulnerable to coercion in a way an adult would not have been.4 We cannot do so because the Supreme Court has taught that the test for whether a person has been seized “is designed to assess the coercive effect of police conduct” (emphasis added), and that while that test

is flexible enough to be applied to the whole range of police conduct in an equally broad range of settings, it calls for consistent application from one police encounter to the next, regardless of the particular individual’s response to the actions of the police. The test’s objective standard — looking to the reasonable man’s interpretation of the conduct in question — allows the police to determine in advance whether the conduct contemplated will implicate the Fourth Amendment. 3 W. LaFaVE, SEARCH AND SEIZURE § 9.2(h), pp. 407-408 (2d ed. 1987 and Supp.1988). This “reasonable person” standard also ensures that the scope of Fourth Amendment protection does not vary with the state of mind of the particular individual being approached.

Michigan v. Chesternut, 486 U.S. 567, 573, 574, 108 S.Ct. 1975, 1979, 1980, 100 L.Ed.2d 565 (1988) (emphases added). As any susceptibility to coercion J.M. possessed by virtue of his age would relate to “the state of mind of the particular individual being approached,” we must defer consideration of it to the separate issue, part IV, infra, of whether he voluntarily consented to the pat-down of his person.5

*502In Kelly v. United States, supra, we stated that

[f]actors which might indicate a seizure would include, for example, the threatening presence of several officers, the display of a weapon by an officer, some physical touching of the person of the citizen, or the use of language or tone of voice indicating that compliance with the officer’s request might be compelled.

580 A.2d at 1286 (citing United States v. Mendenhall, 446 U.S. 544, 554, 100 S.Ct. 1870, 1877, 64 L.Ed.2d 497 (1980) (internal quotation marks omitted)). Except for the fact that here “several officers” were in the bus questioning passengers, none of these factors points to a seizure in this case. Appellant argues that the police effectively “commandeered” the bus by using the speaker system to announce their identity and purpose. But amplification of their message to avoid having to repeat it each time they approached a passenger is not, without more, the “use of language or tone of voice” in a coercive manner contemplated by Mendenhall. Appellant cites as proof that this “signal of authority and control” intimidated the passengers the fact that none of them (between 15 and 30) attempted to leave the bus during the ten-minute rest stop. But we do not know from the record where the last stop had been or where the next scheduled one was; indeed, we do not know whether there was a bathroom aboard the interstate bus. Hence we do not know whether anyone desired to leave the bus.6 Although, unlike in Bostick, supra, the police did not tell J.M. that he was free to ignore their questions and request for permission to search, we conclude — applying the Supreme Court’s “objective standard” — that the totality of the police conduct was not so intimidating that a reasonable person would have felt incapable of “declinpng] the officers’ requests or otherwise termi-nat[ing] the encounter.” Bostick, — U.S. at -, 111 S.Ct. at 2387.

IV.

The conclusion that J.M. was not seized does not end the inquiry, however. When the police patted him down, there unquestionably was a search of his person, which the government seeks to justify on the ground that he voluntarily consented. Schneckloth, 412 U.S. at 219, 93 S.Ct. at 2043. When the issue is voluntariness of a consent, “characteristics of the accused” become relevant, id. at 226, 93 S.Ct. at 2047, and may even be decisive. Among the factors Schneckloth cited as significant are “the youth of the accused; his lack of education; or his low intelligence,” id. (citations omitted); and related to these may be “the lack of any advice to the accused of his constitutional rights.” Id. “[Ajccount must be taken of subtly coercive police questions, as well as the possibly vulnerable subjective state of the person who consents.” Id. at 229, 93 S.Ct. at 2049.

The factor in this case that has troubled the court — the division from the beginning, a majority of the entire court more recently — is the effect of appellant’s age and maturity (or lack thereof) on his ability to consent voluntarily to the detective’s request to frisk his body. We conclude that it is a factor critical to “the nature of [J.M.’s] subjective understanding” of his rights, id. at 230, 93 S.Ct. at 2049, and hence the validity of his consent under Schneckloth. But we also conclude that we cannot review the trial court’s determination of consent on the basis of the findings addressing this factor so far.

The majority opinion for the division described at length the special concern our judicial system has.had to protect juveniles from potentially overreaching police conduct. See In re J.M., 596 A.2d 961, 970-73 (D.C.1991), vacated, February 5, 1992. We need not repeat that discussion here. Sitting as the court en banc, we conclude that what the division correctly identified as the special vulnerability of juveniles to intimidation by figures of authority does not *503justify a presumptive rule invalidating consents by juveniles. Schneckloth emphasized that the issue of consent involves “analyzing all the circumstances of an individual consent,” 412 U.S. at 233, 93 S.Ct. at 2050; see id. at 248-49, 93 S.Ct. at 2059; and this “careful sifting of the unique facts and circumstances of each case,” id. at 233, 93 S.Ct. at 2050, is incompatible with isolating any “single controlling criterion” such as age and imbuing it with presumptively decisive weight in the consent analysis. Id. at 226, 93 S.Ct. at 2047. Yet Schneckloth does indicate by analogy the proper scrutiny we think must be given the fact of age when the trial court decides an issue of consent by a juvenile. The Supreme Court noted (though without having to address the point) “that other courts have been particularly sensitive to the heightened possibilities for coercion when the ‘consent’ to a search was given by a person in custody.” 412 U.S. at 241 n. 29, 93 S.Ct. at 2055 n. 29 (citations omitted). As with the fact of custody, it seems to us almost self-evident that a trial judge deciding the issue of consent by a youth must be sensitive to the heightened danger of coercion in this setting. Correspondingly, our own responsibilities as a reviewing court permit us to require that in such cases the trial judge make explicit findings on the record concerning the effect of age and relative immaturity on the voluntariness of the defendant’s consent. These findings (which need not be in writing) are particularly necessary when it is conceded, as in this case, that the youth was not told he could withhold consent, for even in the adult context the Supreme Court has explained that advice of that right may be “highly relevant” to the voluntariness issue and may “substantially lessen[ ] the probability that [the police] conduct could reasonably have appeared to [the person] to be coercive.” United States v. Mendenhall, 446 U.S. at 559, 100 S.Ct. at 1879.

We have no doubt that the experienced trial judge in this case, assigned specially to the juvenile court, was familiar with the law of seizure and consent under the Fourth Amendment and the need to consider “the setting in which the [police] conduct occurr[ed],” Chesternut, 486 U.S. at 573, 108 S.Ct. at 1979, including the fact of J.M.’s youth. Nonetheless, we cannot properly discharge our review function on the basis of the findings apparent on the record. The judge, although aware J.M. was under fifteen at the time of the search, did not discuss this fact in explaining why the youth had voluntarily consented to the search. He did explain, after hearing testimony from Detective Zattau and J.M., that J.M. had acceded to the request “to deflect suspicion from himself” in the hope of avoiding detection. At the division level, the present writer was satisfied that this statement — reflecting an assessment of J.M.’s demeanor and maturity only weeks after the events — adequately supported the finding that J.M. had responded out of calculation and self-interest (though ill-advisedly) rather than intimidation and ignorance of his rights. See 596 A.2d at 978-80 (Farrell, J., dissenting).7 The full court is now persuaded that this finding, to be sustainable, must be tied more closely to predicate findings by the judge about J.M.’s maturity and understanding of his rights. A desire to “deflect suspicion” from oneself by feigning cooperation may reveal sophistication and knowledge even by a fourteen-year-old, particularly one trusted to ferry a large amount of drugs by interstate transportation. But it may also reflect merely a belief by an inexperienced youth rightly conditioned, like most young people, to obey authority that a search will be conducted regardless of his consent — so that his only real “choice” is to pretend cooperation.8 Which of these hypotheses fits J.M.’s apparent cooperation must depend on an explicit evaluation of his maturity and knowledge in all the circum*504stances, including as one factor the failure of the police to tell him he could refuse consent.9

V.

In conclusion, we reaffirm the standards of review we have heretofore applied to the issues of seizure and consent. We hold that appellant was not seized prior to the conduct of the pat-down search, but remand on the issue of consent. In doing so we reaffirm our recognition of the special ability of the trial court to decide issues of fact, including demeanor and credibility, and our willingness to defer to its judgment “where the facts admit of more than one interpretation.” Davis v. United States, 564 A.2d 31, 35 (D.C.1989) (en banc). But this deference imposes an equal duty on the trial court to deal expressly and thoroughly with the significance of age before finding that a juvenile has consented to a search. We accordingly remand this case to the trial court for further consideration of that issue.

So ordered.

. In Florida v. Bostick, supra, the Supreme Court considered the narrow question "whether a police encounter on a bus ... [during a scheduled stop] necessarily constitutes a ‘seizure’ within the meaning of the Fourth Amendment.” — U.S. at -, 111 S.Ct. at 2386. Answering that question in the negative, the Court "remand[ed] so that the Florida courts may evaluate the seizure question under the correct legal standard,” deciding "whether Bostick chose to permit the search of his luggage.” Id. at -, 111 S.Ct. at 2388. Nevertheless, the Court did not suggest that henceforth — even on facts similar to those in Bostick — courts are to apply a unitary test in deciding the separate issues of seizure and consent.

. Miller involved the issue of review under the federal habeas corpus statute of a state court’s ultimate conclusion concerning the voluntariness of a confession. The Court held this was an issue of law to be considered by the federal courts de novo. However, the opinion leaves no question, in our view, that the Court regards the issue of voluntariness of confessions under the Due Process Clause of the Fifth Amendment as sui generis, both for historical reasons, 474 U.S. at 115, 106 S.Ct. at 452, and because of society's fundamental aversion to permitting a criminal defendant to be "the deluded instrument of his own conviction.” Culombe v. Connecticut, 367 U.S. 568, 581, 81 S.Ct. 1860, 1867, 6 L.Ed.2d 1037 (1961) (citations omitted); Miller, 474 U.S. at 116, 106 S.Ct. at 452 (citing Culombe). Like the United States Court of Appeals for the Eighth Circuit, "[w]e do not believe that [the Miller] rule ... should or will be extended to voluntariness issues under the Fourth Amendment.” United States v. McGinnis, 783 F.2d 755, 759 n. 2 (8th Cir.1986).

In Jimeno, the Supreme Court reaffirmed that "[t]he standard for measuring the scope of a suspect’s consent under the Fourth Amendment is that of ‘objective’ reasonableness — what would the typical reasonable person have understood by the exchange between the officer and the suspect?” — U.S. at-, 111 S.Ct. at 1803-04 (emphasis added). This is not surprising: since a suspect infrequently explains in advance the scope of his consent, the test necessarily must be what a reasonable person would have understood his consent to be from the exchange with the officer. But Schneckloth *501(which the Court cited in Jimeno) made clear that whether a person has consented voluntarily is a question of fact incorporating both objective and subjective components, the object being to ascertain "the nature of a person's subjective understanding.” 412 U.S. at 230, 93 S.Ct. at 2049. It would be remarkable if the Court in Jimeno, without a word suggesting it was doing so, meant to overrule Schneckloth's characterization of the voluntariness of consent as an issue of fact — one traditionally reviewed by appellate courts under a clearly erroneous standard.

. See United States v. Morgan, 286 U.S.App.D.C. 216, 219, 914 F.2d 272, 275 (1990); United States v. McMahon, 935 F.2d 397, 399 (1st Cir.), cert. denied, — U.S. -, 112 S.Ct. 272, 116 L.Ed.2d 224 (1991); United States v. Oguns, 921 F.2d 442, 448 (2d Cir.1990); United States v. Kikumura, 918 F.2d 1084, 1093 (3d Cir.1990); United States v. Hummer, 916 F.2d 186, 189 (4th Cir.1990), cert. denied, — U.S. -, 111 S.Ct. 1608, 113 L.Ed.2d 670 (1991); United States v. Lopez, 911 F.2d 1006, 1011 (5th Cir.1990); United States v. Blakeney, 942 F.2d 1001, 1016 (6th Cir.1991), cert. denied, - U.S. -, 112 S.Ct. 881, 116 L.Ed.2d 785 (1992); United States v. Durades, 929 F.2d 1160, 1167 (7th Cir.1991); United States v. Cortez, 935 F.2d 135, 142 (8th Cir.1991), cert. denied, — U.S. -, 112 S.Ct. 945, 117 L.Ed.2d 114 (1992); United States v. Shaibu, 920 F.2d 1423, 1425 (9th Cir.1990) ("clearly erroneous" standard applied except when "case calls for the formulation of a general rule”); United States v. Evans, 937 F.2d 1534, 1538 (10th Cir.1991); United States v. Valdez, 931 F.2d 1448, 1451 (11th Cir.1991).

. See note 5, infra.

. We do not decide whether consideration of the objective setting in which the police-citizen encounter takes place should include individuating characteristics — such as youth — that are known or apparent to the officer and which he may be assumed to know render the individual more susceptible to coercion than the hypothetical reasonable person. Cf. State v. Carrillo, 156 Ariz. 125, 137, 750 P.2d 883, 895 (1988) ("the propriety of the investigative and interrogation techniques used must be judged in light of what the police knew or should have known about defendant's ability to comprehend the events and circumstances surrounding him or her”). The record provides no support for an argument that Detective Zattau should have recognized appellant as specially vulnerable to expressions of police authority by reason of his age; indeed, Zattau was never questioned about the impression of maturity (or immaturity) appellant made upon him or even whether he recognized him to be a juvenile rather than a young adult.

. Moreover, as in Bostick, supra, the fact that J.M.’s "movements were ‘confined’ in [the] sense” that he was aboard a bus scheduled to depart shortly "was the natural result of his decision to take the bus; it says nothing about whether or not the police conduct at issue was coercive." — U.S. at-, 111 S.Ct. at 2387.

. See McNeil v. Wisconsin, — U.S. -, -, 111 S.Ct. 2204, 2209, 115 L.Ed.2d 158 (1991) ("suspects often believe that they can avoid the laying of charges by demonstrating an assurance of innocence through frank and unassisted answers to questions”).

. And this could remain true even though a youngster believing the police intend to search him without consent might wonder why they bothered to request it.

. The trial judge stated that "the law is clear” that the detective was "not obliged, in fact, to undercut his effort by saying, oh, you don’t have to answer any questions, you can walk away from me immediately, you can in fact ignore me and indeed, I would advise you to do that.” But particularly in the context of juvenile consents, the Supreme Court’s recognition that , advice of the right to refuse, though never decisive by itself, may be “highly relevant” to the volun-tariness of consent, Mendenhall, supra, lends importance to this factor which the trial judge’s statement may not adequately reflect.