In re J.M. , 619 A.2d 497 ( 1992 )

ROGERS, Chief Judge,

with whom MACK, Senior Judge joins, dissenting, but concurring in the remand:

This appeal presents the court with an issue of first impression involving the constitutional rights of young citizens. The hypothetical “reasonable person” standard has been developed by the Supreme Court in the context of seizures involving adults, and to date the Supreme Court has not addressed whether or not the peculiarities associated with non-adult status of a seized person affect the proper examination of the totality of the circumstances.¹ The formula adopted by the Court to determine whether there has been a seizure, based on an assessment of the coercive effect of police conduct, is consistent with consideration of the effect of police conduct on the reasonable person who is a child.

The Supreme Court has explicitly adhered to a contextual approach in determining whether an adult has been seized when it has held that there is a single concept of a hypothetical “reasonable person” that is to be applied to everyone. See Michigan v. Chesternut, 486 U.S. 567, 573-74, 108 S.Ct. 1975, 1979, 100 L.Ed.2d 565 (1988).² In other words, the objective standard encompasses the particular circumstances with which the police officer is confronted. Therefore, it appears consistent with the teachings of the Supreme Court opinions that specific, objectively observable characteristics of the person who is the object of police conduct be considered by a court in determining whether a seizure has occurred. Consequently, I conclude that the majority’s application of the hypothetical “reasonable person” test for adults to a child is misconceived. See majority opinion at Part III.

In articulating the objective reasonable person test, the Supreme Court has neither held nor implied that the circumstances in which the reasonable person finds himself or herself as objectively viewed by a police officer are irrelevant to the determination by the court of whether a seizure has occurred. Rather, as in Chesternut, supra, 486 U.S. at 572, 108 S.Ct. at 1978, the Supreme Court stated that “any assessment as to whether police conduct amounts to a seizure implicating the Fourth Amendment must take into account ‘all of the circumstances surrounding the incident’ in each individual case.” The Court has further explained that “what constitutes a restraint ... will vary, not only with the particular police conduct at issue, but also with the setting in which the conduct occurs.” Id. at 573, 108 S.Ct. at 1979. It should follow, in applying Chestemut’s recapitulation of the test, that a court must consider, as part of “the setting in which the conduct occurs,” id. at 573-74, 108 S.Ct. at 1979, whether a reasonable person who is a child would have thought that he or she was free to leave under the circumstances. Here, specifically, a court must consider whether, in view of the infirmities, inexperience and ignorance inherent in being a child, a seizure has occurred where the child is an interstate bus traveler and the police officers, perceiving a child, act as they did in the instant case and fail to inform the child that he need not answer any questions nor submit to a search and is free to leave.

This approach is consistent with the Supreme Court’s emphasis on the fact that the seizure test, while flexible, “calls for consistent application from one police encounter to the next, regardless of the particular individual’s response to the actions of the police.” Id. Police officers are trained to treat minors differently,³ and in assessing the reasonableness of police conduct this court places emphasis on the extent of the officer’s training and experience.⁴ See Peay v. United States, 597 A.2d 1318, 1322 (D.C.1991) (en banc) (“ ‘in judging the reasonableness of the actions of the arresting officer,’ the circumstances ‘are to be viewed through the eyes of a reasonable and cautious police officer on the scene, guided by experience and training.’ ”) (quoting United States v. Young, 194 U.S.App.D.C. 377, 379, 598 F.2d 296, 298 (1979)). If a court is required to consider the setting in which the seizure of an adult occurs, it can do no less when a child is seized. Thus, the factual question is whether a reasonable, experienced police officer would have realized that J.M. was a child.

The majority asserts that “[a]s any susceptibility to coercion J.M. possessed by virtue of his age would relate to ‘the state of mind of the particular individual being approached,’ this court must defer consideration of it to the separate issue ... of whether he voluntarily consented to the pat-down of his person.” See majority opinion at 501. On the contrary, the “circumstances” inherent in being a child include generally recognized vulnerabilities and immaturities that the police may acknowledge without resorting to speculation about the state of mind of the particular juvenile being approached. The Police Department itself views age as an objective factor. See note 3, supra. As the Supreme Court has stated in another context:

[W]hen, as here, a mere child — an easy victim of the law — is before us, special care in scrutinizing the record must be used. Age 15 is a tender and difficult age for a boy of any race. He cannot be judged by the more exacting standards of maturity. That which would leave a man cold and unimpressed can overawe and overwhelm a lad in his early teens.

Haley v. Ohio, 332 U.S. 596, 599-600, 68 S.Ct. 302, 303-304, 92 L.Ed. 224 (1948). Thus, to consider whether the “reasonable person” at issue is a child is not the same as considering the subjective state of mind of a particular child. Nor is it contrary to the Supreme Court’s emphasis that the police must be able “to determine in advance whether the conduct contemplated will implicate the Fourth Amendment.” Chesternut, supra, 486 U.S. at 574, 108 S.Ct. at 1980.

Applying the “reasonable person” standard in a manner to recognize that a child could, in law, be deemed to have a different understanding of police conduct than an adult assures that young citizens are not denied constitutional protection by reason of their age and immaturity. In view of the position of authority occupied by the police in our society, it is readily conceivable that a child would conclude that he or she is not free to leave, when approached by a police officer, in the absence of the factors that the majority states are relevant in determining whether or not a seizure of an adult has occurred. See majority opinion at 502 (referring to “the threatening presence of several officers, the display of a weapon by an officer, some physical touching ... or the use of language or tone of voice indicating that compliance with the officer’s request might be compelled”) (quoting Kelly v. United States, 580 A.2d 1282, 1286 (D.C.1990)). While a trial court might find a level of sophistication or knowledge of the criminal justice system that belies a particular child’s chronological age, there is nothing in the record before this court to support the conclusion that a child of fourteen or fifteen years of age would have the same reaction to police conduct or the same level of understanding of his or her constitutional rights as an adult.

In a variety of other contexts, the Supreme Court has recognized that there are occasions when the law must treat children differently than adults. Thus, in In re Gault, 387 U.S. 1, 87 S.Ct. 1428, 18 L.Ed.2d 527 (1967), the Court declared that “the greatest care” must be taken to ensure that a confession by a juvenile, in the absence of counsel, “not only ... was not coerced or suggested, but also that it was not the product of ignorance of rights or of adolescent fantasy, fright or despair.” Id. at 55, 87 S.Ct. at 1458; see also Haley v. Ohio, supra, 332 U.S. at 599-600, 68 S.Ct. at 303. Indeed, the Supreme Court acknowledged in Gallegos v. Colorado, 370 U.S. 49, 54, 82 S.Ct. 1209, 1212, 8 L.Ed.2d 325 (1962), that a fourteen year old boy— J.M.’s age — “cannot be compared with an adult in full possession of his senses and knowledgeable of the consequences of his admissions.”

Hence, the fundamental defect in the majority’s seizure analysis arises from its failure to hold that “the setting,” to be considered by a court in determining whether a seizure has occurred, encompasses the reasonable person as a child. In so doing, the majority ignores the Supreme Court’s instruction that the totality of the circumstances must be considered. See Florida v. Bostick, — U.S. -, -, 111 S.Ct. 2382, 2387, 115 L.Ed.2d 389 (1991). Instead, it woodenly applies a standard developed for the hypothetical reasonable adult to a child. Put otherwise, the majority treats a child as a little adult, notwithstanding the Supreme Court’s acknowledgement that a child's appreciation of constitutional rights is not equivalent to that of an adult. See In re Gault, supra, 387 U.S. 1, 87 S.Ct. 1428; Gallegos v. Colorado, supra, 370 U.S. 49, 82 S.Ct. 1209; Haley v. Ohio, supra, 332 U.S. 596, 68 S.Ct. 302; see also 3 W. LaFave, Search and Seizure.- A Treatise on the Fourth Amendment § 8.2, at 32 (1991 Supp.). Cf. In re E.A.H., 612 A.2d 836, 839 (D.C.1992) (“juveniles are not simply younger adults”) citing In re Owen F., 70 Md.App. 678, 523 A.2d 627, 630 & n. 3 (1987) (“in the case of a juvenile, courts are called upon to apply ‘a wider definition of custody for Miranda purposes’ ”) (quoting In re Lucas F., 68 Md.App. 97, 510 A.2d 270, 273 (1986)). While the defect may be less glaring in the instant case because the majority concludes that the age of the child must be considered for purposes of determining consent to intrusive police action, the majority’s analysis sanctions a deprivation of the constitutional rights of some citizens by declining to adopt a legal analysis which acknowledges that, in principle, the effects of police presence and police conduct may be quite different for a child than for an adult.⁵

Accordingly, I would remand the case to the trial court because, although defense counsel argued that J.M.’s age was a significant factor that should be assessed in determining whether or not he was seized, the trial court’s findings do not address J.M.’s age. Upon remand, the trial court must determine whether the police officer was aware, or should have been aware, in view of the immature physical appearance of J.M. or other factors, that he was confronting a child. If the trial court finds that the police officer knew, or should have known, that J.M. was a child, then the trial court must determine whether, in the circumstances, J.M. as a reasonable child would not have thought that he was free to leave. Absent circumstances to indicate a sophistication belying his young age, or other telling circumstances, the failure of the police to advise J.M. that he did not have to answer any questions or submit to a search and was free to leave should be determinative. See United States v. Mendenhall, 446 U.S. 544, 558-559, 100 S.Ct. 1870, 1879, 64 L.Ed.2d 497 (1980) (adult’s knowledge of right to refuse to consent to a search “highly relevant” to determination that there had been consent); see also Bostick, supra, — U.S. at -, 111 S.Ct. at 2385 (fact that police specifically advised Bostick, an adult, that he had the right to refuse consent “particularly worth noting”).

1 . Although a juvenile was involved in California v. Hodari D., — U.S. -, 111 S.Ct. 1547, 113 L.Ed.2d 690 (1991) (holding that the respondent not seized until he was tackled by police officer who was chasing him), the issue was not presented.

2 . In Chesternut the Court refers to the "reasonable man” standard in one sentence and to the "reasonable person” standard in the sentence that immediately follows. Moreover, the Court had no difficulty rejecting the magistrate’s assessment of the factual context and concluding for itself that the pursuit of Chesternut by the police was not a seizure. Id. at 575, 108 S.Ct. at 1980.

3 . See Metropolitan Police Department General Order, Series 305, No. 1 (Dec. 10, 1990) (principal factors to be considered by police officers in dealing with juveniles are age, attitude, prior involvements, nature of the offense, and the seriousness of the complaint).

4 . Indeed, the trial judge explicitly stated his impression that Detective Zattau was "obviously a well-trained and experienced detective. He, I’m sure, has been trained in what things to avoid and what conduct to avoid in order to ensure that he does not get himself into a situation where he is overbearing on someone.”

5 . The majority opinion does not foreclose such an approach, but rather concludes that in the absence of an evidentiary record, through testimony brought out by J.M., the trial judge was not required to address J.M.’s age in determining whether he was seized. See majority opinion at 501 n. 5. While I agree that an evidentia-ry record as the majority describes could possibly strengthen J.M.’s position, the trial judge was not required to close his eyes to the physical appearance of J.M. in deciding whether or not the police officer should have been aware that he was confronting a child. Defense counsel argued that age was a significant factor that the judge should consider, and the trial judge gave no reason for not doing so.