U.S. v. Sanders, 04-3601.

• Citation: 424 F.3d 768
• Decision Date: 23 September 2005
• Docket Number: No. 04-3601.,04-3601.
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Craig SANDERS, a/k/a Sparks, Defendant-Appellant.
• Court: United States Courts of Appeals. United States Court of Appeals (8th Circuit)

424 F.3d 768

UNITED STATES of America, Plaintiff-Appellee, v. Craig SANDERS, a/k/a Sparks, Defendant-Appellant.

No. 04-3601.

United States Court of Appeals, Eighth Circuit.

Submitted: March 4, 2005.

Filed: September 23, 2005.

COPYRIGHT MATERIAL OMITTED

COPYRIGHT MATERIAL OMITTED

Mark C. Meyer, argued, Cedar Rapids, IA, for appellant.

Stephanie M. Rose, argued, Asst. U.S. Atty., Cedar Rapids, IA (Patrick J. Reinert, Asst. U.S. Atty., on the brief), for appellee.

Before BYE, JOHN R. GIBSON, and GRUENDER, Circuit Judges.

BYE, Circuit Judge.

Craig Sanders appeals the district court's denial of his motion to suppress evidence seized during a search of his person. The government contends Sanders consented to the search and the district court properly denied the motion. We reverse and remand.

I

On June 17, 18 and 19, 2002, Cedar Rapids, Iowa, police officer Ryan Abodeely received telephone calls from an employee at a local motel regarding a guest, later identified as Sanders, who was acting suspiciously. The caller indicated many people were coming and going from Sanders's room, and hotel employees suspected he might be dealing drugs. On June 17 and 18, Abodeely went to the hotel and knocked on his door but no one answered. On June 19, Abodeely returned to the hotel and observed Sanders in the parking lot talking to someone in a car. Moments later Sanders got into another car and both drove off. Abodeely's investigation into his identity revealed he had previously been convicted of various drug felonies and was suspected of ongoing illegal drug trafficking. The parties agree, however, Abodeely did not, on any of the three occasions he visited the hotel, observe anything giving rise to probable cause to conduct a search.

On June 20, Abodeely returned with another officer and again knocked on Sanders's hotel room door. Sanders testified the officers knocked loudly and persistently. Abodeely testified he could not remember how long he knocked. In either event, Sanders looked out the window of the room and moments later opened the door. Abodeely testified he and his colleague identified themselves as Cedar Rapids police officers, asked permission to enter the room, and Sanders allowed them to enter. Conversely, Sanders testified he initially blocked the officers' entry into the room but when ordered to step back, did so and allowed them to enter.

Abodeely testified he told Sanders the officers suspected drug dealing and asked permission to search the room and Sanders's person. Sanders claims he was simply told to turn around and let the officers search him. Both agree Sanders raised his arms to facilitate a search of his person. Abodeely indicated he searched Sanders's upper body without incident but when he attempted to reach into one of his front pants pockets, Sanders lowered his hands and blocked Abodeely from going into his pockets. Abodeely ordered him to raise his hands and again attempted to search the pocket. This scenario repeated itself at least five times. Each time, as Abodeely attempted to reach into Sanders's pocket, there was a lowering of his arms and blocking of Abodeely's hands only to be ordered to raise his hands again.

At the suppression hearing, Abodeely testified:

And I began to move down towards his front pockets on his pants; as I did that, he kept bringing his hands down and tried to block my hands from going into his pockets. I advised him that he needed to keep his hands up in the air. As I searched him, started to go once again to search the pockets, he did this (indicating) again where he put his hands down and tried to block my hands. This happened approximately five times at which time I became kind of concerned for Investigator Joecken and myself's safety.

Suppression Hearing Tr. p. 11.

At the suppression hearing, Sanders testified he felt compelled to submit to the search and brought his arms down to keep his pants from being pulled down as Abodeely reached into the pockets. While he repeatedly blocked Abodeely's hands, he did not verbally withdraw consent to search.

Abodeely testified Sanders's refusal to cooperate with the search, and concerns about officer safety, led him to handcuff him. Id. at 21 ("[B]ecause of his uncooperative state and for my own safety, I then handcuffed him."). Notably, however, Abodeely admitted he likely patted Sanders down before actually reaching into his pockets and discovered nothing to indicate he was armed.

Q: Did you ever actually pat him down, or did you just reach and grab?

A: I'm not for sure on that. I would guess I patted him down, because I don't just put my hands in the pockets because I'm afraid there may be a needle or weapon of some sort.

Q: But there's nothing in your report to indicate that you ever felt anything that was consistent with a weapon in his pocket.

A: No.

Id. at 23.

After Sanders was handcuffed, Abodeely was able to complete the search which led to the discovery of eight small rocks of crack cocaine.

Sanders was indicted on one count of possession with intent to distribute crack cocaine in violation of 21 U.S.C. §§ 841(a)(1), 841(b)(1)(C) and 851. He moved to suppress the crack cocaine discovered in the search of his person, arguing he did not give consent. Alternatively, he also argued he withdrew his consent as evidenced by his repeated attempts to block Abodeely's hands from searching his pants pocket. The district court rejected Sanders's arguments holding he gave consent for the officers to enter the hotel room and to search his person. The court further held his actions did not communicate an intent to withdraw his consent.

Additionally, at sentencing, Sanders objected to the district court's use of the United States Sentencing Guidelines, arguing they were unconstitutional. In response, the district court imposed alternative sentences of 210 months under the Guidelines and 300 months in the event the Guidelines were held unconstitutional.

On appeal, Sanders argues the district court erred in refusing to suppress the drug evidence discovered in the search of his person, and the district court's sentence was improper because the Guidelines are unconstitutional.

II

We review the district court's conclusions of law regarding a motion to suppress de novo and its fact findings for clear error. United States v. Booker, 269 F.3d 930, 931 (8th Cir.2001). We will affirm the district court's denial of the motion to suppress "unless it is not supported by substantial evidence on the record; it reflects an erroneous view of the applicable law; or upon review of the entire record, [we] are left with the definite and firm conviction that a mistake has been made." Id. (quoting United States v. Lowe, 50 F.3d 604, 607 (8th Cir.1995)).

A. Consent to Search

"Under the fourth and fourteenth amendments, searches conducted without a warrant issued upon probable cause are presumptively unreasonable, subject to a few specifically established exceptions." United States v. Cedano-Medina, 366 F.3d 682, 684 (8th Cir.2004). Consent to search is one such exception, and "[a] warrantless search is valid if conducted pursuant to the knowing and voluntary consent of the person subject to a search." United States v. Brown, 763 F.2d 984, 987 (8th Cir.1985). Whether consent is voluntarily given is a question of fact, Schneckloth v. Bustamonte, 412 U.S. 218, 248-49, 93 S.Ct. 2041, 36 L.Ed.2d 854 (1973), and on appeal, we review the district court's fact findings for clear error. United States v. Lee, 356 F.3d 831, 834 (8th Cir.2003).

The test applied to determine if consent is free and voluntary is whether, in light of the totality of the circumstances, consent was given without coercion, express or implied. Bustamonte, 412 U.S. at 227, 93 S.Ct. 2041; Laing v. United States, 891 F.2d 683, 686 (8th Cir.1989). The government bears the burden of showing consent was freely and voluntary given and not a result of duress or coercion, Laing, 891 F.2d at 686, and the burden cannot be discharged by showing mere acquiescence to a claim of lawful authority. Bumper v. North Carolina, 391 U.S. 543, 548-49, 88 S.Ct. 1788, 20 L.Ed.2d 797 (1968). "Rather, the government must show that a reasonable person would have believed that the subject of a search gave consent that was the product of an essentially free and unconstrained choice, and that the subject comprehended the choice that he or she was making." Cedano-Medina, 366 F.3d at 684 (internal citations and quotations omitted).

Factors we consider when determining if consent was freely and voluntarily given, as set forth in United States v. Chaidez, 906 F.2d 377, 381 (8th Cir.1990), include 1) age, 2) general intelligence and education, 3) whether the individual was under the influence of drugs or alcohol, 4) whether he was informed of his Miranda¹ rights, and 5) whether he had experienced prior arrests and was thus aware of the protections the legal system affords suspected criminals.

Additionally, the environment in which the alleged consent was secured is also relevant. Accordingly, we consider 1) the length of time one was detained, 2) whether the police threatened, physically intimidated, or punished the suspect, 3) whether the police made promises or misrepresentations, 4) whether the suspect was in custody or under arrest when the consent was given, 5) whether the consent occurred in a public or a secluded place, and 6) whether the suspect stood by silently as the search occurred. United States v. Smith, 260 F.3d 922, 924 (8th Cir.2001). We also consider "whether the defendant's contemporaneous reaction to the search was consistent with consent." United States v. Jones, 254 F.3d 692, 696 (8th Cir.2001). "The factors should not be applied mechanically, and no single factor is dispositive or controlling." United States v. Bradley, 234 F.3d 363, 366 (8th Cir.2000) (internal citation omitted).

The district court found Sanders invited the officers into the hotel room and consented...