USA v. Keith Russell

Filing

FILED OPINION (A. WALLACE TASHIMA, M. MARGARET MCKEOWN and RICHARD C. TALLMAN) AFFIRMED. Judge: MMM Authoring, FILED AND ENTERED JUDGMENT. [8020085]

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FOR PUBLICATION

UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
v.
KEITH RUSSELL,
Defendant-Appellant.

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No. 11-30030
D.C. No.
2:10-cr-00264MJP-1
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

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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 plaintiffappellee.

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 underwear after a warrantless search by officers in the SeattleTacoma International Airport. We conclude that Russell voluntarily 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 surrounding 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 narrated 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).

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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 Airport. 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 luggage. 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 narcotics. 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 possession of Russell’s bag and handing it to the assisting officer
to search, Bruch asked for permission to search Russell a second 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 patted or reached inside the pants.
The district court found that “it was reasonable for the officer to assume that all the areas where narcotics could be
secreted could be touched” outside the clothing. The court

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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
SEARCH

TO

A

PAT-DOWN

[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.”). Nonetheless, 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. Bustamonte, 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 automatically 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 voluntary.
[2] To begin, Russell was not in custody when the search
occurred, nor did the officers have their guns drawn, or even

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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 provided. “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 neutral 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 instructive, 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 consent. 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 consented 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.

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[4] The factual context is key to our decision. Bruch specifically advised Russell that he was looking for narcotics.
After consenting to the search, Russell was more than cooperative. 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 present a question of a body pat-down by an officer of the opposite gender. See, e.g., Hudson v. Hall, 231 F.3d 1289, 1298
(11th Cir. 2000) (noting as a significant factor that the searching officer was the same gender as the suspect); United States
v. Rodney, 956 F.2d 295, 298 n.3 (D.C. Cir. 1992) (“In particular, we do not address situations where, unlike here, the officer 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).

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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 during 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 fieldsearch: “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 investigations 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 Eleventh Circuit was presented with a similar issue in a qualified
immunity appeal. The court held that “a brief and discreet

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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 district 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 authorization for the officers to touch their genitals in the middle
of a public area.” 888 F.2d 795, 800 (11th Cir. 1989) (emphasis 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 testified 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 erroneous. 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 person, and, without making an oral response, [the suspect] simply shrugged his shoulders and extended his arms. [The
deputy] felt a very hard substance in [the suspect’s] groin

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area.” Id. On these facts, the Fourth Circuit affirmed the conviction 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 suspicion 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 consented to a search that revealed drugs hidden in his underwear. 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, including the groin area. We uphold the district court’s denial of
Russell’s motion to suppress.
AFFIRMED.