U.S.A v. Broomfield, 99-3106

• Decision Date: 18 January 2000
• Docket Number: No. 99-3106,99-3106
• Parties: (10th Cir. 2000) UNITED STATES OF AMERICA, Plaintiff-Appellee, v. DONALD RAY BROOMFIELD, Defendant-Appellant
• Court: U.S. Court of Appeals — Tenth Circuit

Page 1270

201 F.3d 1270 (10th Cir. 2000)

UNITED STATES OF AMERICA, Plaintiff-Appellee, v. DONALD RAY BROOMFIELD, Defendant-Appellant.

No. 99-3106

UNITED STATES COURT OF APPEALS TENTH CIRCUIT

January 18, 2000

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 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 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.

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 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 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).

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...