United States v. Russell

FOR PUBLICATION

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

UNITED STATES OF AMERICA,  No. 11-30030

Plaintiff-Appellee, D.C. No.

v.  2:10-cr-00264-

KEITH RUSSELL, MJP-1

Defendant-Appellant.

 OPINION

Appeal from the United States District Court

for the Western District of Washington

Marsha J. Pechman, Chief District Judge, Presiding

Argued and Submitted

December 5, 2011—Seattle, Washington

Filed January 5, 2012

Before: A. Wallace Tashima, M. Margaret McKeown, and

Richard C. Tallman, Circuit Judges.

Opinion by Judge McKeown

17

20 UNITED STATES v. RUSSELL

COUNSEL

Jennifer E. Wellman, Vicki W. W. Lai, FPDWA – FEDERAL

PUBLIC DEFENDER’S OFFICE, Seattle, Washington, for

the defendant-appellant.

Jenny A. Durkan, Sunni Y. Ko, USTA – OFFICE OF THE

U.S. ATTORNEY, Tacoma, Washington, for the plaintiff-

appellee.

OPINION

McKEOWN, Circuit Judge:

This case presents an issue of first impression in this circuit

as to the scope of a voluntary consent to search at an airport.

Keith Russell appeals from the district court’s denial of his

motion to suppress 700 Oxycodone pills found in his under-

wear after a warrantless search by officers in the Seattle-

Tacoma International Airport. We conclude that Russell vol-

untarily consented to a search of his person, and that the

arresting officer’s full-body pat-down, including the groin

area outside Russell’s pants, was reasonable and did not

exceed his consent. We affirm the district court’s denial of the

motion to suppress the pills as evidence.

BACKGROUND

This fact-intensive appeal centers on the details surround-

ing Russell’s arrest and search. The suppression hearing

included testimony from Russell and three law enforcement

officers. The district court credited the version of events nar-

rated by the officers over that by Russell.1

1

We review de novo the district court’s ruling on a motion to suppress.

United States v. Bautista, 362 F.3d 584, 589 (9th Cir. 2004). The court’s

factual findings are reviewed for clear error, United States v. Bynum, 362

F.3d 574, 578 (9th Cir. 2003), as is the determination whether a search

was within the scope of consent. United States v. Rodriguez-Preciado, 399

F.3d 1118, 1131 (9th Cir. 2005).

UNITED STATES v. RUSSELL 21

Officer Matt Bruch is a Port of Seattle Police Officer

assigned as a task force officer with the Drug Enforcement

Administration group at the Seattle-Tacoma International Air-

port. On August 12, 2010, Bruch received a phone call from

an Alaska Airlines ticket agent reporting that Russell,

described as a black male wearing a leather jacket and a large

necklace, had paid cash for a last-minute, one-way ticket to

Anchorage, Alaska. The Alaska Airlines agent also reported

that Russell was traveling alone and did not check any lug-

gage. In light of these circumstances, Bruch was suspicious

that Russell might be a drug courier. Bruch, together with an

assisting officer, proceeded to the departure gate for Russell’s

flight. En route to the gate, Bruch learned that Russell had

prior drug and firearm-related convictions, and had also been

implicated in a prior drug investigation in Alaska.

Once he approached Russell, Bruch displayed his badge

and identified himself as a police officer investigating narcot-

ics. Bruch told Russell that he was “free to go and he wasn’t

under arrest[.]” Bruch asked Russell for permission to search

his bag and his person; Russell consented. After taking pos-

session of Russell’s bag and handing it to the assisting officer

to search, Bruch asked for permission to search Russell a sec-

ond time. Russell again consented verbally and spread his

arms and legs to facilitate the search.

Russell was wearing baggy pants. Bruch testified that he

searched Russell beginning from the ankles and working his

way up, using his “standard operating procedure” for a frisk.

He squeezed the shin, knee and thigh. When Bruch reached

into Russell’s groin area he “lifted up to feel.” After feeling

something hard and unnatural, Bruch arrested Russell. The

entire search occurred outside the clothing; Bruch never pat-

ted or reached inside the pants.

The district court found that “it was reasonable for the offi-

cer to assume that all the areas where narcotics could be

secreted could be touched” outside the clothing. The court

22 UNITED STATES v. RUSSELL

further found that Russell had the option of telling the officers

he did not want to speak, or turning away from them. The

court denied Russell’s motion to suppress evidence from the

search.

ANALYSIS

I. RUSSELL VOLUNTARILY CONSENTED TO A PAT-DOWN

SEARCH

[1] It is well-established that consent is a recognized

exception to the Fourth Amendment’s protection against

unreasonable searches and seizures. Katz v. United States, 389

U.S. 347, 358 n.22 (1967) (“A search to which an individual

consents meets Fourth Amendment requirements.”). Nonethe-

less, it is the government’s burden to show consent was given

“freely and voluntarily.” United States v. Chan-Jimenez, 125

F.3d 1324, 1327 (9th Cir. 1997) (citing Schneckloth v. Busta-

monte, 412 U.S. 218, 222 (1973)). We have identified five

factors to be considered in determining the voluntariness of

consent to a search:

(1) whether defendant was in custody; (2) whether

the arresting officers have their guns drawn; (3)

whether Miranda warnings have been given; (4)

whether the defendant was told he has a right not to

consent; and (5) whether defendant was told a search

warrant could be obtained. The fact that some of

these factors are not established does not automati-

cally mean that consent was not voluntary.

United States v. Morning, 64 F.3d 531, 533 (9th Cir. 1995)

(quoting United States v. Castillo, 866 F.2d 1071, 1082 (9th

Cir. 1988)). Application of these factors leads us to affirm the

district court’s determination that Russell’s consent was vol-

untary.

[2] To begin, Russell was not in custody when the search

occurred, nor did the officers have their guns drawn, or even

UNITED STATES v. RUSSELL 23

visible at any point during the encounter with Russell. The

third factor, Miranda warnings, does not bear on this case

because Russell was not under arrest at the time of the

searches and once he was arrested, the warnings were pro-

vided. “It would . . . make little sense to require that Miranda

warnings. . . be given by police before requesting consent.”

United States v. Vongxay, 594 F.3d 1111, 1120 (9th Cir.

2010) (quoting United States v. Ritter, 752 F.2d 435, 438 (9th

Cir. 1985)). It bears noting that in Chan-Jimenez the Miranda

warnings were pertinent because the defendant had already

been seized. 125 F.3d at 1326. The fourth factor is either neu-

tral or slightly favors Russell: he was not told that he could

refuse to consent. However, the district court found that the

officers told Russell he was free to leave, which is an instruc-

tive, but certainly less clear, way of saying that consent could

be refused. In any event, consent to a search is not necessarily

involuntary simply because officers failed to provide notice of

the right to refuse. United States v. Cormier, 220 F.3d 1103,

1113 (9th Cir. 2000). Finally, the officers did not tell Russell

that they could obtain a search warrant if he refused to con-

sent. The district court’s finding that Russell affirmatively

consented to the search, coupled with consideration of this

five-part inquiry, supports the district court’s conclusion that

the consent was free and voluntary. There was no error, let

alone clear error, in this determination.

II. THE SCOPE OF THE PAT-DOWN SEARCH WAS REASONABLE

[3] Any search, even a consensual one, is constrained by

the bounds of reasonableness. Florida v. Jimeno, 500 U.S.

248, 251 (1991). The question here is whether a request to

conduct a search of the person for narcotics reasonably

includes the groin area. In other words, when Russell con-

sented to a search of his person, was it reasonable for Bruch

to assume the consent included the groin area? The scope of

consent is benchmarked against an “objective reasonableness”

test. Id. at 252.

24 UNITED STATES v. RUSSELL

[4] The factual context is key to our decision. Bruch spe-

cifically advised Russell that he was looking for narcotics.

After consenting to the search, Russell was more than cooper-

ative. To facilitate the search, he lifted his arms to shoulder

height and spread his legs. Russell could have objected either

of the two times he gave verbal consent before the search, or

while Bruch worked his way up from the ankles to the groin.

See, e.g., United States v. Sanders, 424 F.3d 768, 776 (8th

Cir. 2005) (granting a motion to suppress where the suspect

consented to a search of his person but then withdrew consent

by actively shielding his groin area from the officer’s search).

Indeed, Bruch purposely searched from the ankles up because

“it gives them an opportunity to say that they don’t want the

search . . . there is an opportunity to stop.” Instead Russell

said nothing and certainly did nothing to manifest any change

of heart about his consent to search. He never objected,

expressed any concern, nor did he revoke consent or call a

halt to the search, nor did he complain to the officer after the

fact.

[5] We hold that the search was reasonable. Narcotics are

often hidden on the body in locations that make discovery

more difficult, including the groin area.2 The search here did

not extend inside the clothing. Finally, this case does not pres-

ent a question of a body pat-down by an officer of the oppo-

site gender. See, e.g., Hudson v. Hall, 231 F.3d 1289, 1298

(11th Cir. 2000) (noting as a significant factor that the search-

ing officer was the same gender as the suspect); United States

v. Rodney, 956 F.2d 295, 298 n.3 (D.C. Cir. 1992) (“In partic-

ular, we do not address situations where, unlike here, the offi-

cer and the suspect are of opposite sexes.”). Not only would

a reasonable person in Bruch’s situation understand that the

2

Bruch testified that the groin is “a very common area for narcotics or

weapons . . . to be hidden. . . . [O]ut of all my investigations where I find

narcotics, at least probably 80 percent of the narcotics I find are in the

groin area.” This fact is also widely recognized by our sister circuits. See,

e.g., Rodney, 956 F.2d at 297 (citing cases).

UNITED STATES v. RUSSELL 25

general consent for a narcotics search of the person included

a pat-down of all areas of the body, including the groin area,

Russell’s unrestricted consent to the search and conduct dur-

ing the search suggested nothing different.

The Supreme Court has long recognized that searching a

suspect’s person may consist of “a careful exploration of the

outer surfaces of a person’s clothing all over his or her body.”

Terry v. Ohio, 392 U.S. 1, 16 (1968). In Terry the Court cited

the following as an “apt description” of an officer field-

search: “The officer must feel with sensitive fingers every

portion of the prisoner’s body. A thorough search must be

made of the prisoner’s arms and armpits, waistline and back,

the groin and area about the testicles, and entire surface of

the legs down to the feet.” Id. at 17 n.13 (emphasis added)

(quoting L. L. Priar & T. F. Martin, Searching and Disarming

Criminals, 45 J. Crim. L. Criminology & Police Sci. 481, 481

(1954)). Although Terry focused on weapons searches where

officer safety considerations are paramount, id. at 27, the

Court’s reference to the scope of a search of the person is

instructive.

Two other circuits previously addressed the groin issue and

held that a search of the groin in the context of drug investiga-

tions falls within a general consent to a search of the person;

we agree. The D.C. Circuit in Rodney concluded that a groin

search is within a general consent to search the person for

drugs. Rodney, 956 F.2d at 298. Justice Thomas, sitting by

special designation and joined by then-Judge Ginsburg over

a dissent, wrote, “a request to conduct a body search for drugs

reasonably includes a request to conduct some search of that

[groin] area.” Id. See also United States v. Ashley, 37 F.3d

678 (D.C. Cir. 1994) (upholding a groin search as falling

within the bounds set by Rodney); United States v. Broxton,

926 F.2d 1180 (D.C. Cir. 1991) (per curiam) (upholding as

consensual a drug search including the crotch area). The Elev-

enth Circuit was presented with a similar issue in a qualified

immunity appeal. The court held that “a brief and discreet

26 UNITED STATES v. RUSSELL

look into the pants of a suspect by an officer of the same sex

during a search for drugs and for weapons” was within the

scope of a general consent to a pat-down search. Hudson, 231

F.3d at 1298.

[6] Russell’s reliance on an earlier Eleventh Circuit case is

misplaced. In United States v. Blake, the court affirmed a dis-

trict court’s determination that “the consent given by the

defendants allowing the officers to search their ‘persons’

could not, under the circumstances, be construed as an autho-

rization for the officers to touch their genitals in the middle

of a public area.” 888 F.2d 795, 800 (11th Cir. 1989) (empha-

sis added). However, Blake presented significantly different

facts than we consider here. The officers in Blake stopped and

searched the defendants at random, and immediately searched

their groin. Not so here where Bruch had concrete information

that led him to seek out Russell, and then methodically

worked his way up Russell’s legs before searching the groin.

This distinction is crucial—the extra time gave Russell an

opportunity to withdraw or limit his consent. Bruch also testi-

fied that it would be “intrusive and embarrassing” and “[not]

good,” to simply walk up and grab the genital area without

cause. Another crucial distinction is that the standards of

review in Blake and this case are both clear error for factual

determinations, id. at 802, while the findings of the district

courts are inverted. In Blake, the Eleventh Circuit affirmed

the district court’s determination as not being clearly errone-

ous. We do the same here.

Three other circuits have upheld searches of the groin area

in similar factual contexts but in cases that did not present a

Fourth Amendment scope of consent issue. In United States

v. Wilson, a deputy sheriff observed a passenger coming off

a commuter flight behaving suspiciously. 895 F.2d 168, 170

(4th Cir. 1990). The deputy asked “if he could search his per-

son, and, without making an oral response, [the suspect] sim-

ply shrugged his shoulders and extended his arms. [The

deputy] felt a very hard substance in [the suspect’s] groin

UNITED STATES v. RUSSELL 27

area.” Id. On these facts, the Fourth Circuit affirmed the con-

viction and the upheld the admissibility of the drug evidence.

Similarly, the Sixth Circuit upheld the validity of a drug

search which included the defendant’s groin area, holding that

the arresting officers had a reasonable and articulable suspi-

cion legitimating the search. United States v. Winfrey, 915

F.2d 212, 216-18 (6th Cir. 1990). Finally, the Fifth Circuit

upheld the conviction of a drug courier who voluntarily con-

sented to a search that revealed drugs hidden in his under-

wear. United States v. Bowles, 625 F.2d 526, 529 (5th Cir.

1980).

In contrast, and not surprisingly, in the case where consent

was withdrawn, or restricted, the Eighth Circuit considered

the reasonableness of the search against the scope of consent.

Where the suspect had given consent to a search of his person

but then withdrew consent by actively shielding his groin area

from the officer’s search, the Eighth Circuit held the search

invalid. Sanders, 424 F.3d at 776. Here, too, Russell could

have similarly withdrawn or limited his consent at any stage

of the search, but he did not do so.

[7] We conclude that Russell voluntarily consented to a

search of the person, encompassing a full-body frisk, includ-

ing the groin area. We uphold the district court’s denial of

Russell’s motion to suppress.

AFFIRMED.