with whom WAGNER, Associate Judge, joins, concurring in part and dissenting in part:
Although I concur with the majority’s analysis and resolution of the seizure issue, I disagree with its decision to remand this case for explicit findings as to the effect of appellant’s age on the voluntariness of his consent to the search of his person. For the reasons set forth herein, I am of the opinion that the record is sufficient for this court to affirm the trial court’s denial of appellant’s suppression motion. See Peay v. United States, 597 A.2d 1318, 1320 (D.C.1991) (en banc).
The majority’s decision requires the trial judge to discuss appellant’s age explicitly and to make predicate findings about appellant’s maturity and understanding of his rights based solely on the fact that he was fourteen years old when the search occurred. The record developed before the trial judge, however, is devoid of any evidence that appellant’s age, or immaturity and lack of understanding related thereto, prevented him from giving a valid consent. Consequently, appellant failed to preserve the issue as a basis for remand of the case for further findings, since he offered neither proof of facts nor a substantiated proffer of same. See In re R.E.G., 602 A.2d 146, 148 (D.C.1992).
We held recently that we will not disturb a trial court’s ruling denying a motion to suppress evidence in the absence of “proof, or ... even a proffer that [the defendant] had any mental or intellectual deficiency or was otherwise unable to give a valid consent.” Kelly v. United States, 580 A.2d 1282, 1289 (D.C.1990). Although the government had the burden of proving whether or not appellant’s consent was voluntary, Schneckloth v. Bustamonte, 412 U.S. 218, 222, 93 S.Ct. 2041, 2045, 36 L.Ed.2d 854 (1973), Kelly makes clear that where a defendant does not produce “legal or factual support ” for an assertion that he was unable to give a valid consent, the trial court’s ruling should not be disturbed. Kelly, supra, 580 A.2d at 1289 (emphasis added).
A minor’s age alone is not enough to preclude a finding of valid consent. Commonwealth v. Maxwell, 505 Pa. 152, 477 A.2d 1309, 1315, cert. denied 469 U.S. 971, 105 S.Ct. 370, 83 L.Ed.2d 306 (1984), and cases cited therein. This principle of law
Although appellant’s attorney stressed in closing argument that appellant’s consent to the search was involuntary because of his age, counsel’s argument was not a substitute for evidence of a claimed lack of maturity or inability to consent. See Fletcher v. United States, 335 A.2d 248, 250 (D.C.1975) (argument of counsel is not evidence); (John L.) Jackson v. United States, 329 A.2d 782, 790 (D.C.1974). See also Daniels v. United States, 613 A.2d 342, 348 (D.C.1992) (Schwelb, J., concurring). Even if counsel’s argument were construed to be a proffer, “[a] mere [unsubstantiated] proffer is not evidence.” In re R.E.G., supra, 602 A.2d at 148; see also (Darryl) Jackson v. United States, 589 A.2d 1270, 1271 (D.C.1991).
In a case strikingly similar to the present case, a Pennsylvania appellate court held:
We have examined the record and have found no evidence to support a finding that Jermaine[, a sixteen-and-a half-year-old whose bag was searched by police officers on drug interdiction duty in a public railroad station,] was emotionally or mentally immature so as to be incapable of giving valid consent for the police to search her bag. To believe otherwise is to discount entirely the fact that the juvenile was sufficiently mature to purchase a train ticket in New York and travel alone to Philadelphia.
In re Jermaine, supra note 1, 582 A.2d at 1064 (citing Commonwealth v. Maxwell, supra, 477 A.2d at 1315) (“consent to search house given by sixteen-year-old was valid where record was devoid of any evidence of emotional immaturity or mental instability and indicated to the contrary that decision was rational”).
In the present case, appellant, only thirty-two days shy of his fifteenth birthday, bought a bus ticket for the trip from New York to Wilmington, North Carolina, traveled alone and arrived at the Greyhound bus station in Washington, D.C. at 2:30 in the morning, was aware of the drug traffic from New York to Wilmington, knew that police officers are always armed, even when their guns are not visible, and revealed by his testimony that he consciously took steps to deflect suspicion from himself.2 In sum, when all the surrounding circumstances are considered, there is no evidence in the record to support a finding that appellant was emotionally or mentally
Consistent with the holding of Schneckloth, supra, 412 U.S. at 226, 93 S.Ct. at 2047, the experienced trial judge, presiding over juvenile proceedings, assessed the demeanor of the witnesses, evaluated the totality of the circumstances surrounding the consent to search, made a credibility determination in favor of the government, and held that appellant’s consent was voluntarily given.3 See id., 412 U.S. at 227, 93 S.Ct. at 2047 (voluntariness of consent to search is a question of fact determined from the totality of the circumstances); see also In re Jermaine, 582 A.2d at 1064 (although a factor, age alone does not preclude voluntary consent).
Viewing the facts and all reasonable inferences therefrom in favor of sustaining the trial court’s ruling denying appellant’s motion to suppress evidence, as we must, Peay, supra, 597 A.2d at 1320, it is clear that the trial court’s ruling is supported by the evidence, is not clearly erroneous, and should be affirmed. D.C.Code § 17-305(a) (1989); Kelly, supra, 580 A.2d at 1288. See also Childress v. United States, 381 A.2d 614, 618 (D.C.1977). I, therefore, respectfully dissent from the majority’s decision to remand this case for further findings.
It does not follow ... that the approach of passengers during a [bus] sweep is completely random. Indeed, at least one officer who routinely confronts interstate travelers candidly admitted that race is a factor influencing his decision whom to approach. See United States v. Williams, No. 1:89CRO135 (ND Ohio, June 13, 1989), p. 3 (“Detective Zaller testified that the factors initiating the focus upon the three young black males in this case included: (1) that they were young and black...."), aff'd, No. 89-4083 [916 F.2d 714] (CA6, Oct. 19, 1990), p. 7 (the officers “knew that the couriers, more often than not, were young black males”), vacated and remanded, 500 U.S. -, 111 S.Ct. 1572 [114 L.Ed.2d 74] (1991). Thus, the basis of the decision to single out particular passengers during a sus-picionless sweep is less likely to be inarticula-ble than unspeakable.
I.
1.
See United States v. Clutter, 914 F.2d 775 (6th Cir.1990), cert. denied, — U.S. -, 111 S.Ct. 1413, 113 L.Ed.2d 466 (1991); Davis v. United States, 327 F.2d 301 (9th Cir.1964); Murphy v. State, 355 So.2d 1153 (Ala.Crim.App.1978); Doyle v. State, 633 P.2d 306 (Alaska Ct.App.1981); In re Robert H., 78 Cal.App.3d 894, 144 Cal.Rptr. 565 (1978); State v. McBride, 261 Ga. 60, 401 S.E.2d 484 (1991); Rajappa v. State, 200 Ga.App. 372, 408 S.E.2d 163 (Ga.Ct.App.1991); People v. Holmes, 180 Ill.App.3d 870, 129 Ill.Dec. 955, 536 N.E.2d 1005 (Ill.App.Ct.1989); People v. Swansey, 62 Ill.App.3d 1015, 20 Ill.Dec. 211, 379 N.E.2d 1279 (1978); State v. Folkens, 281 N.W.2d 1 (Iowa 1979); People v. Oates, 104 A.D.2d 907, 480 N.Y.S.2d 518 (1984); State v. Scott, 82 Or.App. 645, 729 P.2d 585 (1986); In re Jermaine, 399 Pa.Super. 503, 582 A.2d 1058 (Pa.Super.Ct.1990), State v. Jones, 22 Wash.App. 447, 591 P.2d 796 (1979).
2.
The maturity, sophistication, and street savvy of this youthful drug courier/entrepreneur were exemplified by his testimony during cross-examination at the suppression hearing that he knew that if he did not let the police officer check his bag, the officer might become suspicious and investigate him further. Moreover, he explained that he had no intention of stopping the officer from patting him down, "because if I would have tried to, he would have got more suspicious at me.” [sic]
3.
It is significant that after the record was closed and oral argument had commenced, the judge, sua sponte and without objection, recalled the government's main witness to the witness stand to answer additional questions regarding the voluntariness of appellant’s consent.