United States v. Broomfield

F I L E D
United States Court of Appeals
Tenth Circuit
PUBLISH
JAN 18 2000
UNITED STATES COURT OF APPEALS
PATRICK FISHER
Clerk
TENTH CIRCUIT

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

v. No. 99-3106

DONALD RAY BROOMFIELD,

Defendant-Appellant.

Appeal from the United States District Court
for the District of Kansas
(D.C. No. 98-CR-40021-1)

Gregory G. Hough (Jackie N. Williams, United States Attorney, with him on the
brief), Assistant United States Attorney, Topeka, Kansas, for Plaintiff-Appellee.

Charles D. Dedmon (David J. Phillips, Federal Public Defender, with him on the
brief), First Assistant Federal Public Defender, Topeka, Kansas, for Defendant-
Appellant.

Before SEYMOUR, BALDOCK and BRORBY, Circuit Judges.

BRORBY, Circuit Judge.

Mr. Donald Broomfield appeals his conviction on one count of possession

with intent to distribute crack cocaine in violation of 21 U.S.C. § 841(a)(1). He
raises two issues on appeal. First, he claims the district court erred in failing to

suppress evidence seized during a bus interdiction at the Greyhound Bus

Terminal in Topeka, Kansas. Second, he claims he was denied a constitutionally

fair trial because the prosecutor vouched for the truthfulness of the government’s

witnesses during closing argument. Exercising jurisdiction pursuant to 28 U.S.C.

§1291, we affirm Mr. Broomfield’s conviction.

BACKGROUND

Mr. Broomfield boarded a Greyhound bus at 11:00 p.m. on March 2, 1998,

in Los Angeles, California. He changed buses in Denver, Colorado, and

proceeded through Colorado and into Kansas. On arriving in Topeka, Kansas, at

approximately 11:05 a.m. on March 3, the passengers, including Mr. Broomfield,

were permitted to leave the bus to stretch their legs, smoke or use the restroom.

Mr. Broomfield chose to remain on the bus. After all the passengers who wanted

to exit the bus had done so, Drug Enforcement Administration Special Agent

Walt Thrower boarded the bus and walked directly to the rear to speak with

passengers regarding their travel.

Mr. Broomfield was seated in the rear bench seat on the driver’s side of the

bus, immediately adjacent to the restroom. The bench seat has room for three

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passengers. An unidentified woman sat next to him, closest to the aisle. When

he got to the back of the bus, Agent Thrower identified himself to Mr.

Broomfield, both verbally and by showing his badge. When Agent Thrower

asked if he could speak with him, Mr. Broomfield agreed. Agent Thrower did

not advise Mr. Broomfield he could decline to talk to him.

Standing in the aisle between Mr. Broomfield’s seat and the restroom,

Agent Thrower asked Mr. Broomfield where he was traveling from. Mr.

Broomfield replied Los Angeles. When asked where he was going, Mr.

Broomfield responded St. Louis. Mr. Broomfield said he planned to stay in St.

Louis for about a week. Agent Thrower then asked Mr. Broomfield if he had any

bags, pointing to the overhead rack. Mr. Broomfield grabbed a burgundy-colored

Wilson gym bag that sat next to him on the seat. He denied having any

additional baggage. Mr. Broomfield then presented his ticket to Agent Thrower,

who confirmed the itinerary was Los Angeles, California, to St. Louis, Missouri,

and then returned the ticket to Mr. Broomfield.

Agent Thrower knew the bus trip to St. Louis from Los Angeles was

approximately two days coming and two days going. Based on his training and

experience, Agent Thrower knew Mr. Broomfield’s small gym bag was

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insufficient for such a trip, including a one-week stay in St. Louis, but was

consistent with a quick turn-around trip to deliver controlled substances.

Accordingly, Agent Thrower proceeded to ask Mr. Broomfield if he packed the

gym bag. Mr. Broomfield replied that he had. (When asked if he had any guns

or drugs in the bag, Mr. Broomfield said no. Agent Thrower then asked if he

could search the bag. Mr. Broomfield replied “sure.”

Agent Thrower placed the bag in the first vacant seat on the passenger

side, as the seat next to Mr. Broomfield was occupied. Inside the bag, Agent

Thrower discovered a white sock, balled-up, with a hard object inside. While

still holding the sock, Agent Thrower noticed Mr. Broomfield was visibly

nervous. He was moving his hands and arms beneath the rear of the seat in front

of him and his eyes were tearing. For safety purposes, Agent Thrower asked Mr.

Broomfield to place his hands on the top of the seat in front of him where Agent

Thrower could see them. Agent Thrower proceeded to open the sock and found

an object covered with masking tape. Beneath the masking tape and multiple

layers of plastic bags and wrappings were several small plastic bags containing a

hard off-white rock substance. Based on his training and experience, Agent

Thrower believed the substance to be crack cocaine.

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 Agent Thrower arrested Mr. Broomfield, handcuffed him, and escorted him

off the bus. Two Shawnee County deputies standing outside, near the bus, but

not visible to Mr. Broomfield from his seat, helped Agent Thrower escort Mr.

Broomfield into the cargo area of the bus depot. Agent Thrower advised Mr.

Broomfield of his Miranda rights and asked Mr. Broomfield if he would like to

talk with him about the crack cocaine. Mr. Broomfield stated that the socks

containing the cocaine were his, and that he was traveling to St. Louis to help his

niece, Shyndona Dickerson, drive a car back to Los Angeles.

Drug Enforcement Agency experts tested the substance found in the sock

and identified it as 139.9 grams of cocaine base. They identified fingerprints

found on the plastic wrapping containing the cocaine as Shyndona Dickerson’s.

Further investigation ultimately resulted in a two-count indictment charging both

Mr. Broomfield and Ms. Dickerson with (1) possession with intent to distribute

crack cocaine, and (2) conspiracy to possess with intent to distribute crack

cocaine. Ms. Dickerson pleaded guilty to the conspiracy count and testified

against Mr. Broomfield.

After hearing the evidence, including Ms. Dickerson’s testimony

concerning her prior drug conviction and her arrangement with Mr. Broomfield

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to deliver crack cocaine to Vincent “Marlo” Grimes for sale and distribution in

St. Louis, the jury acquitted Mr. Broomfield of conspiracy, but convicted him of

possession with intent to distribute cocaine. This appeal followed the district

court’s denial of Mr. Broomfield’s post-trial motion for a judgment of acquittal

or a new trial.

ANALYSIS

Suppression of Evidence - Bus Interdiction

Mr. Broomfield claims his consent to search the gym bag was not voluntary

and the search was unreasonable because, taking into account all of the

circumstances surrounding his encounter with Agent Thrower, a reasonable

person in the same situation would not have felt free to decline Agent Thrower’s

search request or otherwise terminate the encounter. He argues the district court

therefore erred by denying his motion to suppress. He seeks a new trial without

the evidence seized as a result of the search.

When reviewing a motion to suppress ruling, “we review de novo the

ultimate determination of Fourth Amendment reasonableness.” United States v.

Little , 60 F.3d 708, 712 (10th Cir. 1995). Certainly, however, the credibility of

the witnesses and the weight given to the evidence presented at the motion

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hearing, as well as the inferences and conclusions drawn therefrom, remain

matters for the trial judge. Id. Where, as here, there are no express factual

findings, we uphold the district court’s ruling if there is any reasonable view of

the evidence to support it. United States v. Gonzalez-Acosta , 989 F.2d 384, 387

(10th Cir. 1993) (quotation marks and citations omitted).

Mr. Broomfield relies on the following circumstances to demonstrate the

involuntariness of his consent: (1) the cramped confines of bus travel,

exacerbated by the fact he was sitting in the back seat with no clear path to or

along the aisle during the encounter; (2) the fatigue and general discomfort

experienced by cross-country bus travelers; (3) his trip did not terminate in

Topeka; (4) Agent Thrower displayed his badge; and (5) Agent Thrower did not

act to defuse the anxiety of the situation or in any way advise him he had a right

to refuse consent. Mr. Broomfield argues no reasonable person would feel free

to refuse a search request under these circumstances; thus, his consent to search

was not voluntary. In support of his argument, Mr. Broomfield cites two

Eleventh Circuit bus cases, United States v. Washington , 151 F.3d 1354 (11th

Cir. 1998) and United States v. Guapi , 144 F.3d 1393 (11th Cir. 1998), and

draws a loose analogy to a Tenth Circuit train case, United States v. Little , 18

F.3d 1499 (10th Cir. 1994) ( en banc ).

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 First, we must agree with Mr. Broomfield that an analogy to Little is

difficult, at best. While Ms. Little did occupy a small roomette on a train, she did

not consent to the search of her bag when encountered by a Drug Enforcement

Administration agent in the roomette. Rather, she agreed to accompany the agent

to the baggage area of the train, where she declined to consent to a search of her

bag. Ms. Little was arrested based on the alert response of a trained narcotics

dog to her luggage. Little , 18 F.3d at 1501-02. These, among numerous other

differences, make Little factually distinguishable.

Little does, however, articulate the applicable test to determine whether

Mr. Broomfield’s encounter with Agent Thrower was consensual:

“[I]n order to determine whether a particular encounter constitutes a
seizure, a court must consider all the circumstances surrounding the
encounter to determine whether the police conduct would have
communicated to a reasonable person that the person was not free to
decline the officers’ requests or otherwise terminate the encounter.”

Little , 18 F.3d at 1503 (quoting Florida v. Bostick , 501 U.S. 429, 439 (1991)).

We note Mr. Broomfield does not dispute the application of this objective, fact

specific test. He simply argues the test as applied to the facts of his case

demonstrate he did not voluntarily consent to the search. Having carefully

studied the record, we must disagree.

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 In Bostick , a bus interdiction case much like this one, the Supreme Court

deemed the following factors relevant to the Fourth Amendment reasonableness

determination: (1) whether the agent advised the defendant he had the right to

refuse consent, (2) whether the agent in any way threatened the defendant ( i.e. ,

the display of a weapon and/or the nature of the questioning), and (3) the

particular location of the encounter. 501 U.S. at 436-37; see also United States

v. Hill , ___ F.3d ___, ___, 1999 WL 1243093 *4 (10th Cir. Dec. 21, 1999)

(factors relevant to whether a reasonable person would feel free to terminate an

encounter with police include “the threatening presence of several officers; the

brandishing of a weapon by an officer; some physical touching by an officer; use

of aggressive language or tone of voice indicating that compliance with an

officer’s request is compulsory; prolonged retention of a person’s personal

effects such as identification and plane or bus tickets; a request to accompany the

officer to the station; interaction in a nonpublic place or a small, enclosed place;

and absence of other members of the public.” (Quotation marks and citations

omitted.)). No one factor is dispositive. Bostick , 501 U.S. at 439; Hill , ___ F.3d

at ___, 1999 WL 1243093 at *4. Rather, we must “tak[e] into account all of the

circumstances surrounding the encounter” to determine whether “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 , 501

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U.S. at 436, 439 (quotation marks and citation omitted). Any analysis

approaching a per se rule in this as in other Fourth Amendment contexts is

prohibited. Id. at 439-40 (rejecting a per se rule that searches within the confines

of a bus are unconstitutional); see also Ohio v. Robinette , 519 U.S. 33 (1996)

(rejecting a per se rule that officers must inform a lawfully seized defendant of

his right to refuse before asking for consent to search his vehicle).

While we understand the restriction of movement, fatigue and anxiety Mr.

Broomfield undoubtedly experienced during the Topeka bus interdiction, this is

not a case like Guapi , in which two officers, one of whom was in uniform,

boarded the bus before the passengers could exit. Moreover, in Guapi , the

uniformed officer announced to all the passengers that the officers wished to

check on-board cargo for contraband and told the passengers that “[w]ith [their]

consent and cooperation” he would like for them to open their on-board luggage

for inspection. He then proceeded to conduct searches from the front toward the

back of the bus while the second officer remained at the front of the bus, thereby

creating the impression a passenger would be prevented from exiting the bus

until he complied with the officers’ request to search luggage. 144 F.3d at 1393-

94. These circumstances understandably warranted a finding of coercion.

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 In contrast, the record in this case reflects that passengers who desired to

leave the bus did so; only then did Agent Thrower board the bus, alone. Agent

Thrower testified he was dressed casually and proceeded to the back of the bus,

not because he had targeted Mr. Broomfield, but because that was what he had

been trained to do. Certainly, beginning at the back of the bus would avoid the

situation criticized in Guapi by creating a clear path for any passenger who

wanted to exit the bus after the agent boarded to do so. For better or worse, Mr.

Broomfield sat at the very rear of the bus -- his freedom of movement was the

natural result of his choice of transportation and seat assignment, not a result of

Agent Thrower’s conduct. See Bostick , 501 U.S. at 436.

Agent Thrower further testified he spoke to Mr. Broomfield individually,

and, while he displayed his badge and did not inform Mr. Broomfield of his right

to refuse consent, he spoke to him in an even tone of voice, returned his ticket

within a short period of time, and made no coercive or threatening gestures or

comments. He carried a gun, but it was not visible to Mr. Broomfield or the

other passengers who remained on the bus. Agent Thrower observed that prior to

consenting to the search, Mr. Broomfield did not appear to be suffering from a

mental disease or defect, to be under the influence of alcohol or drugs, or under

any type of coercion or distress. Agent Thrower admitted that due to the seating

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arrangement at the rear of the bus, Mr. Broomfield would have had to step in

front of the woman seated next to him and pass behind him if he wanted to exit

the bus. However, those space constraints were an inherent aspect of Mr.

Broomfield’s chosen mode of transportation. There is no evidence Agent

Thrower’s conduct or position on the bus conveyed the message that compliance

with his requests was required.

We recognize the Eleventh Circuit relied significantly on the fact the

officers in Guapi and Washington did not specifically inform individual

passengers they had a right to refuse consent. Indeed, in our opinion, that factor

was dispositive in Washington , thus creating a per se rule that authorities must

notify bus passengers of the right to refuse consent before questioning those

passengers and asking for consent to search luggage. See Washington , 151 F.3d

at 1357-58 (Black, Circuit Judge, dissenting). Although we agree such

notification is a relevant fact to consider, it cannot be dispositive of the

reasonableness inquiry. See id. at 1358; Bostick , 501 U.S. at 439. As the dissent

in Washington noted, “[s]hort of telling the passengers of the right to refuse

consent, it is difficult to conceive of any actions the[] officers could have taken

to make th[e] search any more reasonable.” Washington , 151 F.3d at 1358

(Black, Circuit Judge, dissenting). This result renders the soundness of the

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Washington opinion questionable.

It is similarly difficult to imagine how authorities could ever conduct a

reasonable search under the circumstances Mr. Broomfield relies on to prove

coercion, unless we establish a per se rule that authorities must either notify bus

passengers they have the right to refuse consent or, due to the unavoidable space

constraints, refrain altogether from questioning passengers seated in the far rear

seat. Either approach might arguably constitute good policy; however, imposing

such a rule would transgress Supreme Court precedent. The location of the

encounter is but one factor in the totality of the circumstances, and, under the

totality of Mr. Broomfield’s circumstances, the bus setting as a whole and the

details of Agent Thrower’s actions do not indicate coercion. Moreover, there is

nothing unlawful about the practice of approaching individuals and asking them

potentially incriminating questions, Bostick , 501 U.S. at 439, and there is no per

se rule requiring law enforcement officials to specifically advise those

individuals they do not have to answer police questions. Hill , ___ F.3d at ___,

1999 WL 1243093 at *5; Little , 18 F.3d at 1505. For these reasons, we believe

the evidence supports the district court’s denial of Mr. Broomfield’s motion to

suppress evidence, and conclude Agent Thrower’s search was reasonable under

the totality of the circumstances.

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Prosecutorial Misconduct

Mr. Broomfield claims the district court erred by failing to sustain an

objection to the government’s closing argument, which he says impermissibly

offered personal opinion as to the truthfulness of its witnesses, Agent Thrower

and Shyndona Dickerson. Mr. Broomfield characterizes this issue as a mixed

question of fact and law subject to de novo review.

We begin our analysis of this claim by clarifying the appropriate standard

of review. In the context of this case, because Mr. Broomfield

contemporaneously objected to the prosecutor’s closing argument statements, and

subsequently unsuccessfully moved for a new trial based, in part, on allegations

of prosecutorial misconduct, he is not entitled to a de novo ruling on the

prosecutorial misconduct objection. Rather, we review the district court’s denial

of Mr. Broomfield’s motion for a new trial for an abuse of discretion. United

States v. Villa-Chaparro , 115 F.3d 797, 803 (10th Cir.), cert. denied , 522 U.S.

926 (1997). Applying this standard, we conclude the district court did not abuse

its discretion.

The statements Mr. Broomfield challenges were made during the

government’s rebuttal argument, when, in response to defense counsel’s closing

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argument that “this is a case about perjury,” and repeated characterization of Ms.

Dickerson’s testimony as “lies”, the prosecutor told the jury:

The criminal justice system that you’re a part of as jurors in
this case is not a perfect system, but I submit to you it’s the best
system in this world, and it is a system that is based upon the truth,
it’s based upon justice, and it’s based upon integrity. Walt Thrower
told you the truth and has no reason to lie to you. Shyndona
Dickerson told you the truth. And she was told that if she lied she
would face the maximum penalty on that charge and a perjury
charge.

....

Having heard the truth consistent with your oaths, we ask you to
uphold the integrity of the system.

Mr. Broomfield asserts that while the prosecutor’s reference to the truthfulness

obligation of a witness in her plea agreement was permissible, “[t]he further

argument that the detective and the informant were telling the truth was clearly

impermissible.” According to Mr. Broomfield, those statements “put the

government’s attorney behind the witness[es], vouching for their credibility,”

and, together with the prosecutor’s further reference to the integrity of the

system, “violated [his] substantial rights to a fair trial.”

We typically give prosecutors considerable latitude where, as here, defense

counsel arguably “invites” a response. See Villa-Chaparro , 115 F.3d at 803.

Nevertheless, we want to take this opportunity to advise prosecutors against what

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we perceive to be an increasing willingness to unnecessarily push the envelope of

improper vouching. 1
As the district court properly noted, however, even

assuming the government’s argument in this case was improper, it does not

warrant a new trial unless it influenced the jury’s verdict. See id. Considering

the trial as a whole, the extent of the alleged misconduct, and the role of the

alleged misconduct, see Gabaldon , 91 F.3d at 94, we agree with the district court

it did not.

In reading the record, it is clear the challenged statements were made in the

context of rebutting defense counsel’s full bore attack on Ms. Dickerson’s

credibility. Prior to making the challenged statements, the prosecutor told the

jury they were entitled to disbelieve Ms. Dickerson, though he believed it would

be inconsistent with all the evidence. Prior to deliberations, the court repeatedly

1
We remind prosecutors,

“[t]he United States Attorney is the representative not of an ordinary
party to a controversy, but of a sovereignty whose obligation to
govern impartially is as compelling as its obligation to govern at all;
and whose interest, therefore, in a criminal prosecution is not that it
shall win a case, but that justice shall be done.... He may prosecute
with earnestness and vigor – indeed, he should do so. But, while he
may strike hard blows, he is not at liberty to strike foul ones.”

United States v. Gabaldon, 91 F.3d 91, 94-95 (10th Cir. 1996) (quoting Berger v.
United States, 295 U.S. 78, 88 (1935)).

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instructed the jurors that they were the sole and exclusive judges of the

credibility of each of the witnesses called to testify. The court also instructed the

jurors that the statements and arguments of counsel are not to be considered

evidence in the case. Moreover, as the district court explained, Ms. Dickerson’s

testimony was used primarily to support the conspiracy charge of which Mr.

Broomfield was acquitted. Ms. Dickerson was not present when Mr. Broomfield

was arrested and consequently provided little valuable evidence to support the

possession charge. Any improper argument about the truthfulness of Ms.

Dickerson’s testimony therefore had little or no effect on the outcome of the

possession charge. Agent Thrower’s testimony concerning the facts surrounding

Mr. Broomfield’s cocaine possession was never rebutted. Under these

circumstances, we conclude the prosecutor’s closing statements were not so

egregious as to influence the jury to convict Mr. Broomfield on improper

grounds.

For the foregoing reasons, the district court’s order denying the motion to

suppress and denying Mr. Broomfield a new trial are AFFIRMED .

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