dissenting:
One considering a case like this cannot help but realize that it raises troublesome issues regarding the measures that police may take in their efforts to gain relief from the current plague of drug trafficking and attendant murders and other serious crimes. There is agreement, I am confident, that no matter how laudable the goal *1363of any law enforcement effort may be, it must be conducted in a manner consistent with the liberties of our people guaranteed by the Constitution. My differences with the majority opinion are not at all with the principles it seeks to uphold, but with the manner in which it does so and the conclusions it reaches.
The words that Justice Blackmun wrote for the Supreme Court in Michigan v. Chesternut, 486 U.S. 567, 108 S.Ct. 1975, 100 L.Ed.2d 565 (1988), concerning investigatory pursuits call into question the majority’s effort to fashion what, upon analysis, is revealed to be virtually a bright-line prohibition against second or successive encounters of the type involved in this case. Justice Blackmun wrote that both parties “in their attempts to fashion a bright-line rule applicable to all investigatory pursuits, have failed to heed this Court’s clear direction that any assessment as to whether police conduct amounts to a seizure implicating the Fourth Amendment must take into account” all the surrounding circumstances. Id. at 572, 108 S.Ct. at 1979. He went on to state that rather than adopting the bright-line rule proposed by either side and determining that the kind of police action in question “is or is not necessarily a seizure under the Fourth Amendment, we adhere to our traditional contextual approach, and determine only that, in this particular case, the police conduct in question did not amount to a seizure.” Id. at 572-78,108 S.Ct. at 1979 (emphasis in original). The trial judge in this case used the traditional contextual approach. I turn now to an evaluation of the trial court’s determinations in light of the Supreme Court’s teachings.
I would affirm the trial court’s decision to deny the appellant’s motion to suppress. The evidence adduced at the suppression hearing amply supports Judge Urbina’s finding that the police did not employ duress or coercion during the sequence of events that led to the discovery of cocaine on appellant’s person, and supports as well the trial judge’s complementary findings made on the basis of all the circumstances that it was made reasonably clear to appellant that he was able “to move on free from further discussion” at all times during his encounters with the police, and that he willingly gave his consent to the search.
My basic disagreement with the majority opinion arises from the fact that it gives unwarranted — virtually controlling— weight to the fact that the discovery of the cocaine came in the course of the second encounter between appellant and a plainclothes police officer. This factor was but one of many factors that the trial judge was required to consider in determining whether appellant was seized by the officer and whether he freely consented. Those other factors include the following: the two police officers who dealt with appellant and his associate were not in uniform;1 they displayed neither badges nor weapons; the officer who spoke with appellant did so in a polite and conversational tone; the officer made his requests of appellant in the nonintimidating surroundings of Union Station; the officer never positioned himself in such a manner as to block appellant’s way; the officer did not escort appellant to an interrogation room; he did not touch appellant before appellant had agreed to the search of his person; and after the first encounter, as appellant and his associate left a fast food stand, appellant’s associate (who had had a parallel first encounter with another officer) spontaneously walked a short distance away from appellant and asked the officers for directions to the taxicab stand, behavior that obviously indicates that the associate did not then feel intimidated, and suggests that appellant did not feel intimidated either.
Based on the totality of the evidence, Judge Urbina found that in the first encounter Sergeant Brennan did not “in any way obstruct[ ] the movements of Mr. Guadalupe” or do “anything expressly or impliedly geared to create an aura of intimidation that would obviate Mr. Guadalupe’s *1364understanding of his right to move on freely from further discussion.” Crucial to a proper legal analysis is his further finding that Sergeant Brennan made it “reasonably clear ... that he was prepared to conduct himself in the same fashion in connection with the second encounter.” With respect to consent to be searched, Judge Urbina found “that there was no intimidation, no duress of an actual or implied nature, and that there is no evidence that suggests that the defendant was particularly vulnerable or that he had the subjective state of mind or what would have made him vulnerable to the conduct as described by the government, and that the consent was, in fact, freely given.” The judge went on to add that appellant “gave consent that was free.”
In United States v. Mendenhall, 446 U.S. 544, 100 S.Ct. 1870, 64 L.Ed.2d 497 (1980), the Supreme Court addressed a situation in which the United States District Court had found that the suspect had accompanied drug enforcement agents to an office “voluntarily in a spirit of apparent cooperation,” id. at 549, 100 S.Ct. at 1874, but the Circuit Court of Appeals evidently concluded that the agents’ request that the respondent accompany them converted the situation into an arrest. The majority of the members of the Supreme Court agreed that “because the trial court’s finding was sustained by the record, the Court of Appeals was mistaken in substituting for that finding its view of the evidence.” Id. at 557, 100 S.Ct. at 1879. Like the federal circuit court that was reversed in Menden-hall, the majority here mistakenly substitutes its view of the effect in this case “as a matter of law” of the circumstances of a second encounter for the trial judge’s findings, based upon the totality of the circumstances, that appellant had not been seized as of the time he freely consented to be patted down by the plainclothes officer. To use its language, the majority holds that “as a matter of law a reasonable person in appellant’s circumstances would not have felt free to leave when confronted for a second time to allow a body search after having allowed a baggage search.”
This court has recognized that its review of a trial court’s decision on a motion to suppress is limited. Lawrence v. United States, 566 A.2d 57, 60 (D.C.1989). “We give deference to the trial judge’s findings of fact, and must accept his resolution of conflicting testimony. Moreover, the judge’s factual findings will not be disturbed unless they are clearly erroneous, i.e., without substantial support in the record.” Id. at 60 (citations omitted). Because there is substantial support for the findings of fact made by Judge Urbina, they cannot be considered clearly erroneous. The majority does not quarrel directly with the trial court’s factual findings, but instead substitutes its determination that Guadalupe was seized before he was searched, thus vitiating his expressed consent to the search of his person. This appeal presents, therefore, the question whether the majority is ‘ “giving due deference to the trial court’s findings of fact concerning appellant’s encounter with the police,’ ” id. (quoting Richardson v. United States, 520 A.2d 692, 696 (D.C.), cert. denied, 484 U.S. 917, 108 S.Ct. 267, 98 L.Ed.2d 224 (1987)), when it supplants with its contrary conclusion of law the trial court’s findings that the police officer’s actions made it reasonably clear to Guadalupe that he could move on from the second encounter free from further discussion and that Guadalupe freely gave his consent to the second search.
The case law does not support the majority’s view that the police actions vis-a-vis appellant constituted a seizure of his person as a matter of law in violation of the Fourth Amendment. “Obviously, not all personal intercourse between policemen and citizens involves ‘seizures’ of persons. Only when the officer, by means of physical force or show of authority, has in some way restrained the liberty of a citizen may we conclude that a ‘seizure’ has occurred.” Terry v. Ohio, 392 U.S. 1, 19 n. 16, 88 S.Ct. 1868, 1879 n. 16, 20 L.Ed.2d 889 (1968). “There is nothing in the Constitution which prevents a policeman from addressing questions to anyone on the streets.” Id. at 34, 88 S.Ct. at 1886 (White, J., concurring). Moreover, there is no constitutional right *1365to be free of investigation. United States v. Trayer, 283 U.S.App.D.C. 208, 211, 898 F.2d 805, 808, cert. denied — U.S. -, 111 S.Ct. 113, 112 L.Ed.2d 83 (1990). The key question in determining whether a person has been seized under the Fourth Amendment is “whether a reasonable person would have felt free to leave.” Lawrence, supra, 566 A.2d at 60 (quoting Richardson, supra, 520 A.2d at 696); see also Chesternut, supra, 486 U.S. at 573, 108 S.Ct. at 1979; Immigration & Naturalization Serv. v. Delgado, 466 U.S. 210, 215, 104 S.Ct. 1758, 1762, 80 L.Ed.2d 247 (1984); Florida v. Royer, 460 U.S. 491, 501-02, 103 S.Ct. 1319, 1326-27, 75 L.Ed.2d 229 (1983). Courts frequently find that a person is free to leave an encounter with the police even in situations “in which many of us would discern the existence of considerable pressure not to” leave. Lawrence, supra, 566 A.2d at 60. Such encounters between the police and people are generally deemed consensual “ ‘absent intimidating circumstances beyond the natural sense of obligation almost anyone would feel when a police officer begins asking questions.’ ” Id. at 62 (quoting United States v. Barnes, 496 A.2d 1040, 1044 (D.C.1985)). As the Supreme Court stated in Delgado, supra: 466 U.S. at 216, 104 S.Ct. at 1762-63 (citation omitted).
police questioning, by itself, is unlikely to result in a Fourth Amendment violation. While most citizens will respond to a police request, the fact that people do so, and do so without being told they are free not to respond, hardly eliminates the consensual nature of the response. Unless the circumstances of the encounter are so intimidating as to demonstrate that a reasonable person would have believed her was not free to leave if he had not responded, one cannot say that the questioning resulted in a detention under the Fourth Amendment.
The Supreme Court has described certain intimidating factors that could suggest a seizure, such as “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.” Mendenhall, supra, 446 U.S. at 554, 100 S.Ct. at 1877 (Stewart, J., plurality opinion).2 Another intimidating factor noted in some opinions is the retention of one’s identification or travel ticket. See, e.g., United States v. Lewis, 921 F.2d 1294, 1297 (D.C.Cir.1990). The totality of the circumstances determine whether such a “seizure” has taken place. Id.
It is worth noting that even when the circumstances of an individual’s encounter with police are “somewhat intimidating” as in Chesternut, supra, the Supreme Court has held that no seizure occurred. 486 U.S. at 575, 108 S.Ct. at 1980. Certainly the police encounter with Chestemut tended more in the direction of coercion and intimidation than the police contact with Guadalupe. In Chestemut, the police drove their marked patrol vehicle, without its siren or flasher activated, alongside, a person who was running along the sidewalk until he eventually dropped certain contraband.3 Id. Here Sergeant Brennan approached Guadalupe in plain clothes with no weapon visible, spoke courteously with him, and requested but did not demand his assistance in answering a few questions and consenting to a search, at first of his bag, and later of his person. The police contacts occurred in open public areas. Appellant’s first encounter with the police was within the train station, the second in the outer reaches of the station near the cab stand.4 Significantly, between the first *1366and second time appellant and his associate were asked whether they agreed to searches, appellant’s associate spontaneously left appellant’s side as they walked away from a food stand, and went up to the two officers to ask directions. This fact strongly suggests that at that time appellant and his friend were not at all intimidated.
This court’s recent opinion in Kelly, supra note 2, 580 A.2d at 1286, applied the governing principles of constitutional law to a case in which a police officer found a traveler in possession of illegal narcotics at Union Station under circumstances that were similar but not identical to those presented in this case. In Kelly, a police detective in plain clothes approached a traveler in much the same manner as Sergeant Brennan initially approached Guadalupe in this case. Following a brief conversation, Kelly acquiesced in the detective’s request for permission to search the shopping bag that Kelly was carrying. The trial court found that Kelly had not been seized as of the time he gave his consent and that the search was consensual.
In affirming, we observed that “a determination of whether a seizure has occurred must take into account not one or two factors considered in isolation, but the ‘totality of the circumstances.’ ” Id. at 1285 (citing Mendenhall, supra, and Chesternut, supra). We noted the holdings of the Supreme Court in Royer, supra, and Delgado, supra, to the effect that law enforcement officers do not violate the Fourth Amendment merely by approaching an individual in a public place and asking him questions. Kelly, supra note 2, 580 A.2d at 1285-86. We listed the intimidating factors which the Supreme Court identified in Mendenhall, supra, as being indicative of a seizure. Kelly, supra note 2, 580 A.2d at 1286. We cited with general approval a number of recent opinions of the United States Court of Appeals for the District of Columbia Circuit, id. at 1287-88, and quoted the Circuit’s following statement in United States v. Joseph, 282 U.S.App.D.C. 102, 892 F.2d 118 (1989):
‘[I]n this circuit the test of whether a seizure has occurred is whether a reasonable person, innocent of any crime, would have felt free to walk away under the circumstances.’
... [T]he police do not restrain liberty so as to constitute a seizure merely by approaching a citizen, directing toward him a question, or asking him for identification.
Id. at 105, 892 F.2d at 121 (quoting Gomez v. Turner, 217 U.S.App.D.C. 281, 288-98, 672 F.2d 134, 141-44 (1982) (emphasis added)).5 We quoted with approval, Kelly, supra note 2, 580 A.2d at 1288, the Circuit’s language in a case subsequent to Joseph that an encounter that involves “no more than approach, questioning, and official identification, does not constitute a seizure and does not require probable cause, articu-lable suspicion, or any other ‘kind of objective justification.’ ” United States v. Smith, 284 U.S.App.D.C. 64, 66, 901 F.2d 1116, 1118 (citations omitted), cert. denied, — U.S. -, 111 S.Ct. 172, 112 L.Ed.2d 136 (1990). In addition, we expressed our agreement with opinions of the circuit to the effect that the police “have no affirmative duty to inform those with whom they *1367have contacts that they are free to leave.” Kelly, supra note 2, 580 A.2d at 1286 n. 5.6
With respect to the validity of Kelly’s consent to the search of the shopping bag, we pointed out that the voluntariness of the consent, like the issue of whether a seizure occurred, is to be determined from the totality of the surrounding circumstances. We noted that the trial court credited the detective’s testimony and went on to say “[b]ecause this determination is essentially factual, ‘[w]e are bound to uphold the trial court’s finding that a search was consensual unless such a finding is clearly erroneous.’ ” Id. at 1288 (quoting Childress v. United States, 381 A.2d 614, 618 (D.C.1977)).
Our holding in Kelly does not of itself mandate the outcome of this appeal because the facts in Kelly did not include a second encounter between the police and a citizen; Kelly, however, lays down principles that, if applied here, validate Judge Urbina’s rulings and require affirmance.
Applying our holding in Kelly to the case before us, I note first that this court is bound by the trial court’s subsidiary factual findings, so long as they are not clearly erroneous, regarding the non-intimidating fashion in which the two approaches to Guadalupe were conducted and, most importantly, the related finding that objectively Guadalupe was made aware that during the second encounter he was free to leave (and therefore not seized) and gave his consent to the pat-down freely.7
The majority makes frequent references to the totality of the circumstances approach used in Kelly, but in the end, it is the majority’s analysis that, even given what transpired before the second encounter (beyond argument a consensual encounter under Kelly), the circumstances of the second encounter constituted a seizure as a matter of law.8 Given the majority's explanation of its reasons for reversing Judge Urbina’s careful findings of a consensual encounter, freedom to depart, and acquiescence to the search, there appears no other conclusion to draw than that the majority is adopting what is virtually a bright-line rule. That rule is that whenever there has been a first encounter and a luggage search of the type involved in this case and Kelly, a second encounter and request for a search of the person is so coercive that as a matter of law a reasonable person would not feel free to leave. The only additional factor the majority cites is that Guadalupe saw his associate, Rivera, agree to a second search just before Guadalupe did. But if that search of Rivera was consensual (and it appears clearly that the trial court was satisfied that it was), it is difficult to see why Rivera’s voluntary acquiescence put Guadalupe into a position in which his consent could not also be voluntary. Aside from the negligible factor of the search of Rivera, which I submit was not a coercive factor, there is nothing that separates the majority’s holding here from a rule that a second encounter accompanied by a request for a search of the person is necessarily a seizure.
*1368In arriving at his finding that appellant “gave consent that was free,” the trial judge thoughtfully raised the question why a person carrying narcotics would consent to a search of his person. Judge Urbina observed that Guadalupe, having escaped detection once, might have “gambled” in the thought that the drugs were hidden well enough to escape detection. Doubtless, that might have been the reason. In the circuit’s opinion in United States v. Winston, supra note 6, Judge Buckley made other valid observations about the phenomenon of giving consent under such circumstances, after having first noted that the question of whether a “seizure” occurs is an objective one making the subjective beliefs of the person approached “irrelevant.” Id. 282 U.S.App.D.C. at 99-100, 892 F.2d at 115-16. He went on to state:
The test recognizes that in some police-citizen encounters, a person’s awareness of the duties of police officers to apprehend criminals, keep the peace, and prevent crime, “coupled with feelings of civic duty, moral obligation, or simply proper etiquette, will often lead a reasonable person to cooperate with law enforcement officers_ Accordingly, the presence of [an] officer as a figure of governmental authority does not, by itself, constitute the ‘show of authority’ necessary to make a reasonable person feel unfree to leave.” Gomez, 672 F.2d at 141-42 (footnotes omitted); see also Miranda v. Arizona, 384 U.S. 436, 477-78, 86 S.Ct. 1602, 1629-30, 16 L.Ed.2d 694 (1966) (“It is an act of responsible citizenship for individuals to give whatever information they may have to aid in law enforcement.”). Thus, “to overcome the presumption that a reasonable person is willing to cooperate with a law enforcement officer,” Gomez, 672 F.2d at 142, it must be demonstrated that the officer's show of authority, in combination with other circumstances, is objectively “so intimidating that [an individual] could reasonably have believed that he was not free to disregard the police presence and go about his business.” Chesternut, 108 S.Ct. at 1981 (internal quotations omitted).
Id. at 100, 892 F.2d at 116.9
Because the factual situation here has apparently not presented itself previously in the federal or local courts in the District of Columbia, the majority looks to other jurisdictions for authorization on the “issue of whether a person is unlawfully seized when he is requested during a second confrontation to consent to a body search.” The majority relies heavily on United States v. Morin, 665 F.2d 765 (5th Cir. 1982), to support its apparent view that the answer to the question it poses is in the affirmative. But Morin is easily distinguishable from this case in that the second contact in Morin was patently a seizure of Morin made under extremely intimidating circumstances. After Morin was questioned in the Dallas airport and refused to let the authorities look at his luggage, he arrived at the next airport, Austin, in a very nervous state. He was sweating profusely and waited until last to exit the plane. He went directly to the men’s room and, as the Fifth Circuit described it:
As defendant stood before a urinal in the otherwise empty restroom, Wolsch stepped up to his right side, identified himself as a police officer and stated that he suspected defendant of carrying nar-*1369cotíes. He asked for identification, which Morin supplied and Wolsch kept. Defendant’s airline ticket was also taken at this time. Wolsch was accompanied by three other plain-clothes policemen, one of whom was standing on the other side of defendant and two others who were approximately ten to fifteen feet away. Wolsch told defendant that the officers wished to question him and asked him to accompany them to the airport police office. Officer Wolsch next inquired twice whether Morin had any luggage other than the carry-on bag which was next to him. He made this inquiry despite the fact that he knew the answer based on information from the Dallas law enforcement authorities. Defendant denied having any other luggage. He was then briefly frisked and taken to the airport police office, where he was subjected to a body search.
Id. at 767-68 (footnote omitted).
Because the police action in Morin was obviously intimidating and coercive, unlike the police encounters involved in the instant case, Morin is not authority for holding that the second encounter in the instant case was as a matter of law a seizure of the person. Most importantly, Morin did not adopt a per se rule, but held that the occurrence of a second stop was one factor, albeit a strong one, to be considered in determining whether the encounter rose to the level of an arrest.10 Id. at 769.
While the majority relies on Morin, supra, which we have shown to be factually distinguishable, I think that the opinion of the Eighth Circuit in United States v. Ilazi, 730 F.2d 1120 (8th Cir.1984), is more instructive. Ilazi begins its analysis by distinguishing between 1) voluntary communication between law enforcement officers and citizens; 2) brief investigative stops which are limited seizures; and 3) full scale arrests. The Eighth Circuit then goes on to discuss successive encounters primarily in the context of whether they can transmute investigative stops into full scale arrests. Ilazi is valuable to the analysis here because of its instruction that the presence of successive stops is but one factor to be added to the list of factors to be considered in determining whether an interrogation rises to the level of an arrest. Id. at 1126-27;11 see also Zukor v. State, 488 So.2d *1370601 (Fla.Dist.Ct.App.), review denied, 496 So.2d 144 (Fla.1986).
Turning to the intertwined issue of consent to the search, Judge Urbina’s findings of no intimidation are virtually dispositive. The trial court ruled, in part, as follows:
Court finds that there was no intimidation, no duress of an actual or implied nature, and that there is no evidence that suggests that the defendant was particularly vulnerable or that he had the subjective state of mind or what would have made him vulnerable to the conduct as described by the Government, and that the consent was, in fact, freely given.
The presence of consent vel non is a fact-bound determination, and this court is bound by the trial court’s factual findings unless they are clearly erroneous. Kelly, supra note 2, 580 A.2d at 1288; Childress v. United States, 381 A.2d 614, 618 (D.C. 1977). Upon review of the record, I see no basis for overturning the trial court’s finding of consent, especially where, as here, the court found after an evidentiary hearing that consent “was in fact voluntarily given, and not the result of duress or coercion, express or implied.” Schneckloth v. Bustamonte, 412 U.S. 218, 248, 93 S.Ct. 2041, 2058, 36 L.Ed.2d 854 (1973).12 The trial court properly concluded that consent to a search depends on the totality of the circumstances. Id. at 226, 93 S.Ct. at 2047; Kelly, supra note 2, 580 A.2d at 1288; Derrington v. United States, 488 A.2d 1314, 1325 (D.C.1985), cert. denied, 486 U.S. 1009, 108 S.Ct. 1738, 100 L.Ed.2d 201 (1988). Other than the very fact of a second stop, the distant presence of a second officer, and Rivera’s consent to a second search, this case presents no relevant factors that call into question what on its face was a valid consent, e.g., deficient mental or intellectual capabilities, show of force, detention or physical coercion. See Kelly, supra note 2, 580 A.2d at 1289.13
That this case involves a search of Guadalupe’s person, rather than a search of appellant’s bag, does not undermine the trial judge’s determination that appellant’s consent to the body search was voluntarily given. See Mendenhall, supra, 446 U.S. at 558-59, 100 S.Ct. at 1879-80 (consent to a strip search voluntary); see also United States v. Wilson, 895 F.2d 168, 172 (4th Cir.1990) (consent to search of person voluntary); United States v. Galberth, 846 F.2d 983, 986-88 (5th Cir.) (same), cert. denied, 488 U.S. 865, 109 S.Ct. 167, 102 L.Ed.2d 137 (1988). There seems to be no essential distinction between a consent to search a person’s luggage and a consent to a search of one’s person, although it is true that a pat down search is more intrusive than a luggage search and the finder of fact should consider that as one of the relevant surrounding circumstances in de*1371ciding whether one consented to it.14 As the United States Court of Appeals stated recently in United States v. Lewis, supra:
[T]he [trial] court complained that the performance of a body search in public was “patently offensive.” Lewis [v. United States] 728 F.Supp. at 790. It may have been, but that begs the constitutional question. [Appellant] Lewis consented to the search, and that consent, rather than any resulting embarrassment, is the constitutionally relevant point.
United States v. Lewis, supra, at 1300.
Although the majority emphasizes the length of time the police had Guadalupe and his associate under surveillance, the significant time period is instead the actual length of the two encounters with police. See Zukor v. Florida, supra, 488 So.2d at 604 (distinguishes between time between contacts with police and time of actual contact with police); United States v. Borys, 766 F.2d 304, 311 (7th Cir.1985) (same) (police followed and intermittently questioned deplaning passenger for 45 minutes at airport terminal), cert. denied, 474 U.S. 1082, 106 S.Ct. 852, 88 L.Ed.2d 893 (1986); cf. Royer, supra, 460 U.S. at 500, 103 S.Ct. at 1325 (stop “must be temporary and last no longer than is necessary to effectuate the purpose of the stop.”). Each of the two encounters here was of limited duration. It is important that there is no indication in the record that Guadalupe knew he was under surveillance during the span of time between encounters. Yet the majority frequently refers to the surveillance as a circumstance that supports its decision to supplant Judge Urbina’s findings. Equally unsubstantiated by the record is the majority’s reference to “repeated” questioning. Appellant was questioned only twice.
An unfortunate but quite possible result of the majority’s opinion is that there will be more intrusive intervention by police during an initial encounter, involving perhaps both a search of luggage as well as a pat-down search of the person, in order to avoid the virtual certainty the majority holding provides that a court would deem a second encounter a seizure as a matter of law and suppress any illegal narcotics discovered as a result of that encounter.15
In sum, the record supports Judge Urbi-na’s determination that Guadalupe freely gave his consent to a search of his person. In making his determination, the trial judge properly considered the totality of the circumstances, found that they did not create an “aura of intimidation,” found that it was made reasonably clear to Guadalupe that he was free to leave during the second encounter, and did not take the view that the added circumstance of a second encounter that included a request for a search of the person required, as a matter of law, a ruling that Guadalupe was illegally seized and that his consent to a search was invalid. Because the trial judge’s findings of fact were not “clearly erroneous” and his application of the law was correct, I would uphold his decision to deny the motion to suppress the narcotics, and would affirm.
. The two law enforcement officers involved were Sergeant Brennan of the Narcotics Branch, Metropolitan Police Department, and Agent Dunn of the Drug Enforcement Agency. I will sometimes refer to them as officers or police officers.
. "The plurality opinion by Justice Stewart has become the law.” Lawrence, supra, 566 A.2d at 62 n. 9; see also Kelly v. United States, 580 A.2d 1282, 1285 n. 4 (D.C.1990).
. The instant case also presents a stronger basis for affirmance than United States v. Burrell, 286 A.2d 845, 846-47 (D.C.1972), where the police officer touched appellant's elbow and asked to speak to him; appellant here had no physical contact with the police officers until he consented to the search of his person. In Burrell we held that even the physical touching by the police did not convert the encounter into a seizure. Id.
.I am not aware of a record basis for the majority’s indication that the search of Guadalupe's person took place on a public street. Majority opinion at 1361 & n. 27.
. The United States Court of Appeals for the District of Columbia handed down a significant opinion in the area of police-citizen encounters after we decided Kelly. In United States v. Lewis, 921 F.2d 1294 (D.C.Cir.1990), the Circuit reversed the rulings of district judges in two cases that particular encounters between police and citizens within interstate buses amounted to seizures of the citizens. The district judges had ruled that "the defendants were not 'free to leave’ — and, therefore, were seized for Fourth Amendment purposes — because leaving would have required them to squeeze past police officers in the aisle and to risk missing the bus’s departure.” Id., at 1298. Reversing, the Circuit held that there was nothing unconstitutional about the encounter in the close confines of the bus "so long as the passengers’ freedom to decline the interview and to go about their business has not been restrained 'by physical force or a show of authority.’ Terry v. Ohio, 392 U.S. at 19 n. 16, [88 S.Ct. at 1879 n. 16].’’. At 1300.
Although the circumstances of Lewis were quite different from those of the case at bar, I think it is obvious that the potential for intimidation was greater in Lewis. Thus, the holding in Lewis suggests strongly that the majority here errs.
. The other opinions of the United States Court of Appeals for the District of Columbia Circuit which we cited with general approval in Kelly were United States v. Maragh, 282 U.S.App.D.C. 256, 260-61, 894 F.2d 415, 419, cert. denied, — U.S.-, 111 S.Ct. 214, 112 L.Ed.2d 174 (1990); United States v. Winston, 282 U.S.App.D.C. 96, 892 F.2d 112 (1989), cert. denied, — U.S.-, 110 S.Ct. 3277, 111 L.Ed.2d 787 (1990); United States v. Baskin, 280 U.S.App.D.C. 366, 370, 886 F.2d 383, 387 (1989), cert. denied, — U.S.-, 110 S.Ct. 1831, 108 L.Ed.2d 960 (1990); and United States v. Lloyd, 276 U.S.App.D.C. 118, 122, 868 F.2d 447, 451 (1989).
. It is curious that even though the majority opinion cites Kelly, it nevertheless states at page 1357 that "it is at least arguable that appellant may have been seized at the point Sergeant Brennan asked him if he was carrying narcotics and, when he denied he was, asked to search his bag.” In light of Kelly and the trial judge’s findings here, that issue is not arguable.
.Contributing perhaps, to the majority’s adoption of what is virtually a per se rule that any second police encounter of the type involved here amounts to a seizure of the person is the majority’s failure to recognize anywhere in its opinion that the circumstances are to be viewed through the eyes of "a reasonable person, innocent of any crime.” Kelly, supra note 2, 580 A.2d at 1287 (quoting United States v. Joseph, supra, 282 U.S.App.D.C. at 105, 892 F.2d at 121). A person innocent of crime would find actions like those of Sergeant Brennan less cause for concern than would a person transporting cocaine into the District of Columbia.
. A number of cases decided by the U.S. Court of Appeals for the D.C. Circuit are consistent with my view that the trial judge’s ruling should be upheld, although none deal specifically with a second encounter. See, e.g., Winston, supra note 6, 282 U.S.App.D.C. at 101, 892 F.2d at 117 (no seizure or implication of the Fourth Amendment when police officers question passenger who departed bus in D.C. in a non-coercive manner as "the Fourth Amendment is not necessarily implicated when a police officer initiates an encounter with a citizen he has no articula-ble reason to suspect of a crime.”); United States v. Baskin, supra note 6, 280 U.S.App.D.C. at 369-70, 886 F.2d at 386-87 (same); United States v. Lloyd, supra note 6, 276 U.S.App.D.C. at 121-22, 868 F.2d at 450-51 (no seizure, but voluntary consent to questioning and search of a passenger departing from a train from New York to D.C. at Union Station); United States v. Brady, 269 U.S.App.D.C. 18, 842 F.2d 1313 (1988) (search after consent on board an Amtrak train while it was stopped in D.C.); see also United States v. Nurse, 286 U.S.App.D.C. 303, 306, 916 F.2d 20, 23 (1990).
. The majority also cites United States v. Gonzales, 842 F.2d 748 (5th Cir.1988), overruled (on grounds explained below) by United States v. Hurtado, 905 F.2d 74 (5th Cir.1990) (en banc). Our holding in Kelly, supra note 2, and numerous other cases cited above are contrary to the holding in Gonzales that a person is seized when a police officer informs her that he is "working narcotics” and requests to look in her bag. Gonzales, supra, 842 F.2d at 752. I agree with Gonzales' acknowledgment that the appellate court owed deference to the trial court’s factual finding that the suspect voluntarily consented to the police officer’s request to search her bag. Id. at 755.
The viability of Fifth Circuit precedent on motions to suppress has been called into question by the recent en banc decision of that circuit overruling certain previous cases, including Gonzales, supra, cited by the majority, because an incorrect evidentiary standard was applied. Hurtado, supra, 905 F.2d at 75. The Fifth Circuit, now conforming its position with that of the Supreme Court in United States v. Matlock, 415 U.S. 164, 177 n. 14, 94 S.Ct. 988, 996 n. 14, 39 L.Ed.2d 242 (1974), will require the government to prove the voluntariness of consent for a search by merely a preponderance of the evidence instead of by clear and convincing evidence as had been required in such cases as Gonzales, supra. Hurtado, supra, 905 F.2d at 76.
. In Ilazi, supra, special state narcotics officers initially questioned two passengers who had deplaned at the Minneapolis-St. Paul International Airport because they had aroused suspicion by walking slowly "off the plane, staggering from left to right, sniffing and inhaling deeply after placing their fingers next to their noses.” 730 F.2d at 1121. After the state officers had questioned the passengers at an airport bar, cooperating federal agents initiated a second encounter with the passengers after watching them leave the bar and proceed down the concourse, one walking "like ‘a two-year-old child with a dirty diaper.’” Id. at 1123. During this second encounter, the agents identified themselves, asked the passengers questions, and examined their travel documents. After the officers noticed a bulge in one of the passenger’s socks, they were taken to the airport office and placed under arrest. A search of Uazi's person incident to the arrest revealed cocaine in his underwear and sock. The court in Ilazi rejected arguments that "an arrest occurs in every case involving successive stops.” Id. at 1125. Instead the Eighth Circuit (as did the Fifth Circuit in Morin ) considered the presence of successive stops as a factor in "determining when an interroga*1370tion rises to the level of arrest." Id. at 1126. The court stated:
we do not believe this stop exceeded permissible bounds [for investigative stops] merely because it was a second stop — even though, as a second stop, it was inherently more intrusive and coercive than the first. To so hold would preclude law enforcement officials from stopping a suspect a second time whenever the first stop did not provide probable cause, even though it tended to confirm their suspicions of illegal activity. We believe that to adopt a per se rule prohibiting successive investigatory stops would unduly hinder efforts to interdict illegal drug traffic. Because of the inherently transient nature of drug courier activity, immediate, on-the-spot investigations, which frequently involve talking directly to the individuals suspected of such activity, substantially enhance the likelihood that law enforcement officers will be able to prevent the flow of illegal narcotics into distribution channels.
IcL at 1126 (emphasis in original).
. As Schneckloth requires, the trial judge focused on the state of mind of appellant Guadalupe, instead of that of a hypothetical reasonable person. See United States v. Lewis, supra, at 1300.
. The trial court did not consider whether, even if the successive nature of the police officer’s encounters of Guadalupe somehow converted the contact into a seizure for Fourth Amendment purposes, appellant’s voluntary consent sufficed to purge any taint from the alleged seizure of appellant. See United States v. Gonzales, supra note 10, 842 F.2d at 755 (consent to search bag voluntary after being “seized" for purposes of the Fourth Amendment by federal agents); see also Wong Sun v. United States, 371 U.S. 471, 486, 83 S.Ct. 407, 416, 9 L.Ed.2d 441 (1963).
. It should be observed that pat down searches in public places are not truly extraordinary in today’s world. Persons traveling on international flights must frequently undergo such searches. Moreover, the search found to be consensual in Mendenhall, supra, was a strip search of a female passenger by a female officer in a private room.
. The government does not argue that the officer had grounds for a Terry stop at the time of the second encounter. It does point out, though, that after the first encounter and during the surveillance period, the two officers compared notes and agreed that Rivera and Guadalupe were acting suspiciously. The record does not justify an inference that the second encounter was merely a form of harassment. To the contrary, the officers acted reasonably in seeking a second encounter.