dissenting:
I respectfully dissent.. I disagree with both the majority’s view that there was no *760seizure of Zapata when he was confronted and interrogated, and also with its holding clearly erroneous the trial judge’s ultimate finding that Zapata’s consent to the search was involuntary. I address first the involuntariness of the consent to search.
The majority opinion makes a thorough and forceful analysis from its perspective. I am unable to agree, however, particularly because I am convinced the significant perspective here was that of the trial judge who heard and saw the witnesses and was charged with the duty of making the critical findings of fact. To me the district court’s crucial finding that the “government has not proven that Defendant’s consent to the police questioning and search was given freely and voluntarily” cannot be held clearly erroneous on this record. Consent for the search of defendant’s luggage not being freely and intelligently given, the evidence from the search and the statement that followed were properly suppressed.
Our recent decision in United States v. Soto, 988 F.2d 1548, 1557 (10th Cir.1993),1 makes it clear that
The voluntariness of consent must be determined from the totality of the circumstances, and the government bears the burden of proof on the issue_ the government must show that there was no duress or coercion, express or implied, that the consent was unequivocal and specific, and that it was freely and intelligently given.
Underlying the trial judge’s ultimate finding here that the government did not prove that consent for the questioning and search was given freely and voluntarily were specific, historical subsidiary fact findings: Agent Small positioned himself next to defendant’s seat, blocking egress; Small identified himself as a police officer, flashed his badge and began asking pointed questions about Zapata’s destination and from where he had come; Small requested Zapata’s ticket and identification; Small asked whether Zapata had any drugs in his luggage arid whether he would “voluntarily consent” to a search. The judge found that “[t]he questions were rapid-fire, direct, accusatory and potentially incriminating,” and that “Defendant was not advised of his right to refuse to answer the agent’s questions or to refuse to comply with the agent’s requests.” Order at 2.
The record amply supports these findings by the trial judge. Agent Small and Zapata were the only witnesses at the suppression hearing. Small admitted that when he first asked if he could talk to Zapata, he did not ever tell Zapata he had a right not to talk to Small and that Zapata had the right not to answer the question whether he had any luggage. Tr. at 27, 32. Most pertinently, the tape recording of their initial conversation and the transcript of it, Pl.’s Exs. 2 and 3,2 show that no statement was made by Agent Small to Zapata advising him that he had the right to refuse consent for the search, unlike the situation in Florida v. Bostick, — U.S. -, -, 111 S.Ct. 2382, 2385, 115 L.Ed.2d 389 (1991) (among facts “particularly worth noting” was “[f]irst, the police specifically advised Bostick that he had the right to refuse consent”). We have recently twice stressed the importance of the lack of advice to the defendant of his right to terminate the encounter or to refuse consent. See United States v. Bloom, 975 F.2d 1447, 1455 (10th Cir.1992); United States v. Ward, 961 F.2d 1526, 1533 (10th Cir.1992). While such an explicit advisement is not a requirement, it is a significant factor to consider in the totality of the circumstances, see INS v. Delgado, 466 U.S. 210, 215-16, 104 S.Ct. *7611758, 1762, 80 L.Ed.2d 247 (1984), as the majority opinion properly notes. See supra p. 757 n. 4.
A consent to search is valid if it is voluntarily given and the question whether a search is voluntary is a question of fact to be determined by the district court from the totality of the circumstances. United States v. Wright, 932 F.2d 868, 878 (10th Cir.), cert. denied, — U.S. -, 112 S.Ct. 428, 116 L.Ed.2d 448 and cert. denied sub nom Kirby v. United States, — U.S. -, 112 S.Ct. 450, 116 L.Ed.2d 467 (1991). Such findings of fact may not be disturbed unless clearly erroneous. Campbell v. United States, 373 U.S. 487, 493, 83 S.Ct. 1356, 1359, 10 L.Ed.2d 501 (1963) (noting importance of ad hoc appraisal by trial judge that “may well have depended upon nuances of testimony and demeanor of witnesses”); Wright, 932 F.2d at 878 (“We must accept the court’s findings [on voluntariness of consent] unless they are clearly erroneous”). Moreover, as the Supreme Court has instructed us:
[W]hen a trial judge’s finding is based on his decision to credit the testimony of one of two or more witnesses, each of whom has told a coherent and facially plausible story that is not contradicted by extrinsic evidence, that finding, if not internally inconsistent, can virtually never be clear error.
Anderson v. Bessemer City, 470 U.S. 564, 575, 105 S.Ct. 1504, 1512, 84 L.Ed.2d 518 (1985).
Here the trial judge was weighing the testimony and demeanor of Agent Small and Zapata in order to make his findings of subsidiary facts and his ultimate finding that the government had not proven consent for the search was given freely and voluntarily. In my view, the judge’s assessment of the evidence bearing on those findings cannot be held clearly erroneous. Ample evidence supporting the trial judge’s views is apparent and we must remember that the government bore the burden of proof that Zapata’s consent was voluntary. United States v. Evans, 937 F.2d 1534, 1538 (10th Cir.1991). Accordingly, we should not disturb the crucial findings made on this issue of consent.3
Thus I would uphold the trial judge’s finding that the government did not prove that Zapata’s consent for the search was free and voluntary. This conclusion alone is an ample premise for affirming the order of suppression. However, I also respectfully disagree with the majority’s rejection of the trial court’s finding that a seizure of Zapata occurred in these circumstances when Agent Small began questioning Zapata without reasonable articulable suspicion. Order at 3-4.
The majority opinion notes correctly that the question whether a seizure occurred is a question of law. See supra p. 756. In reversing the trial court’s seizure ruling, the majority relies first on Florida v. Bostick and its inquiry whether a reasonable person would have felt that he “was not free to decline the officer’s requests or otherwise terminate the encounter.” Primarily the majority opinion focuses on the factual similarity to one aspect of Bostick — that the encounter occurred in the coach car of the train and in view of some 45-55 other travelers.
Bostick itself instructs us that “[w]here the encounter takes place is one factor, but it is not the only one.” — U.S. at -, 111 S.Ct. at 2387. The Court noted further that no seizure occurs when questioning begins •with identification and a request for a search is made — “so long as the officers do not convey a message that compliance with their *762requests is required.” - U.S. at -, 111 S.Ct. at 2388 (emphasis added). Here the trial judge carefully focused on those very factors as his findings show: Agent Small positioned himself next to Zapata’s seat, blocking egress; he flashed his badge and began pointed questioning;4 his questions “were rapid-fire, direct, accusatory and potentially incriminating”; no other passengers in the car had been or were being questioned by either officer when defendant was questioned; and defendant was not advised of his right to refuse to comply with the officer’s requests, including that for Zapata’s consent to a search. Order at 1-2. These underlying findings of historical facts are in the nature of what the parties to the encounter said or did and those findings may not be disturbed unless clearly erroneous. United States v. Montilla, 928 F.2d 583, 588 (2d Cir.1991).
In my judgment, the factual circumstances as found by the trial judge furnish a solid basis for his conclusion that a seizure occurred when the accusatory questioning began in this setting. I am persuaded that the judge was carefully considering Bostick, as well as Ward and Bloom, and that his ruling that a seizure occurred, without reasonable articulable suspicion, was not in error. Being convinced that no error was committed by the trial court in his underlying findings or in his conclusion that a seizure occurred without articulable suspicion, I would affirm on this additional ground.
. Respectively II Supp.R. and I Supp.R.
. The majority opinion acknowledges our rule that one panel may not overrule an earlier decision of the court and our consideration in United States v. Recalde, 761 F.2d 1448, 1454 (10th Cir.1985), of factors relating to the defendant’s upbringing and experiences as an alien. Nevertheless the majority says it would accord Zapata’s circumstances and attitude toward authority no weight; but acknowledging Recalde, the majority says that our prior precedent does not require such factors to be given controlling or significant weight. I cannot join in the disagreement with Recalde. Here, Zapata’s language deficit (his testimony was given with the aid of an interpreter) was a part of the objective conditions observed by the trial judge, along with Zapata’s demeanor, and I see no reason for the judge’s references to Zapata’s circumstances to be treated as a basis for reversing the judge's findings.
. In Ward, 961 F.2d at 1533 n. 6, we noted our agreement with the Sixth Circuit "that a reasonable person 'would not believe that a police officer is not armed.'" Id. (citing United States v. Grant, 920 F.2d 376, 382 (6th Cir.199)).