©2012 Brian S. Batterton, Attorney, PATC Legal & Liability Risk Management Institute (www.llrmi.com)
On January 5, 2012, the Ninth Circuit Court of Appeals decided the United States v. Russell [i], which serves as an excellent review regarding consent searches of a person. The facts of Russell are as follows:
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. [ii]
Russell was charged with the illegal possession of 700 Oxycodone pills in federal district court. He filed a motion to suppress and the district court denied his motion. Russell appealed to the Ninth Circuit Court of Appeals.
The first issue before the court of appeals was whether the officers conducted a lawful search of Russell. To this issue, the court first noted that consent is a recognized exception to the Fourth Amendment’s prohibition against unreasonable searches. [iii] However, it is important to note that when the government relies on consent as justification for a search, the government bears the burden to show that the consent was “freely and voluntarily” given. [iv] The Ninth Circuit then identified five factors that must be considered when making a determination about whether consent was “free and voluntary. The court stated:
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)). [v]
The court then applied the facts of Russell’s case to the factors above. First, Russell was not in custody; in fact, the officer told him that he was free to go. Second, the officer did not have his gun drawn. Third, the officer did not provide Russell with a Miranda warning, however, he was not under arrest. As such, Miranda was not needed. Fourth, while Russell was not told that he could refuse consent, he was told that he was free to go, which inferred a right to refuse consent. The court also noted that consent to search is not necessarily invalid simply because an officer did not tell the suspect that he or she had the right to refuse. [vi] Lastly, the officers did not threaten to obtain a search warrant if Russell refused to consent.
In light of the above rationale, the court held that Russell’s consent to search was free and voluntary, and as such, valid.
The second issue before the court was whether the officer exceeded the scope of Russell’s consent when he searched Russell’s groin area. Stated in another way, the court examined whether a request to conduct a search of a person for narcotics reasonably includes a search of the groin area.
At the outset, the court noted that often this issue is decided based on specific facts of an individual case (rather than a clear-cut rule). The court then set out to examine the facts of Russell’s case. First, the officer advised Russell that he was requesting consent to search for narcotics. Narcotics are commonly hidden in suspect’s groin areas. Second, after consenting to the search, Russell raised his arms and spread his legs. Third, as the officers began the search, which only consisted of a thorough pat-down search of the exterior of Russell’s clothes, he started at Russell’s ankles and worked his way up the leg toward the groin area. Russell did not object or tell the officer to stop at the groin. Fourth, Russell did not withdraw his consent during the search. Lastly, the court considered that Russell and the officer were the same gender.
With these facts in mind, the court examined various court precedents relevant to the issue before them. First, quoting Terry v. Ohio [vii], the court stated:
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.[viii]
The court also noted that two other federal circuit courts have upheld consent searches of suspects groin areas during consent searches for narcotics. Particularly, the D.C. Circuit held that a groin search is within a general consent to search the person for drugs. [ix] Further, the Eleventh Circuit held that:
A brief and discreet look into the pants of a suspect 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. [x]
Lastly, the Ninth Circuit noted that three other federal circuits have upheld similar groin searches in cases that did not present a “scope of consent” issue. [xi]
The court then held that the pat-down search of Russell’s groin area pursuant to his valid consent to search was reasonably within his scope of consent.
As such, the Ninth Circuit affirmed the denial of the motion to suppress.
Note: Court holdings can vary significantly between jurisdictions. As such, it is advisable to seek the advice of a local prosecutor or legal adviser regarding questions on specific cases. This article is not intended to constitute legal advice on a specific case.
[i] 664 F.3d 1279 (9th Cir. 2012)
[ii] Id. at 2-4
[iii] Id. at 4 (citing Katz v. U.S., 389 U.S. 347 (1967))
[v] Id. at 5
[vi] Id. at 6 (citing U.S. v. Cormier, 220 F.3d 1103 (9th Cir. 2000))
[vii] 392 U.S. 1 (1968)
[viii] Id. at 9
[ix] Id. at 10 (citing U.S. v. Rodney, 956 F.2d 295 (D.C. Cir. 1992))
[x] Id. (quoting Hudson v. Hall, 231 F.3d 1289, 1298 (11th Cir. 2000))
[xi] Id. at 12 (citing United States v. Wilson, 895 F.2d 168, 170 (4th Cir. 1990); United States v. Winfrey, 915 F.2d 212, 216-18 (6th Cir. 1990); United States v. Bowles, 625 F.2d 526, 529 (5th Cir. 1980))