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United States of America v. Keith Russell

January 5, 2012

UNITED STATES OF AMERICA, PLAINTIFF-APPELLEE,
v.
KEITH RUSSELL, DEFENDANT-APPELLANT.



Appeal from the United States District Court for the Western District of Washington Marsha J. Pechman, Chief District Judge, Presiding D.C. No. 2:10-cr-00264- MJP-1

The opinion of the court was delivered by: McKEOWN, Circuit Judge:

FOR PUBLICATION

OPINION

Argued and Submitted December 5, 2011-Seattle, Washington

Before: A. Wallace Tashima, M. Margaret McKeown, and Richard C. Tallman, Circuit Judges.

Opinion by Judge McKeown

OPINION

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 Seattle-Tacoma 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.*fn1

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 further found that Russell had the option of telling the officers he did not want to speak, or turning away from ...


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