U.S. v. Barnes

• Decision Date: 29 October 2007
• Docket Number: No. 06-2129.,06-2129.
• Citation: 506 F.3d 58
• Parties: UNITED STATES of America, Appellant, v. Kenny BARNES, Defendant, Appellee.
• Court: U.S. Court of Appeals — First Circuit

506 F.3d 58

UNITED STATES of America, Appellant, v. Kenny BARNES, Defendant, Appellee.

No. 06-2129.

United States Court of Appeals, First Circuit.

Heard February 6, 2007.

Decided October 29, 2007.

Donald C. Lockhart, Assistant United States Attorney, with whom Robert Clark Corrente, United States Attorney, and Zechariah Chaffee, Assistant United States Attorney, were on brief, for appellant.

Judith H. Mizner, Assistant Federal Public Defender, Federal Defender Office, District of Massachusetts, for appellee.

Before TORRUELLA, Circuit Judge JOHN R. GIBSON,^* Senior Circuit Judge, and LIPEZ, Circuit Judge.

TORRUELLA, Circuit Judge.

On June 8, 2006, the United States District Court for the District of Rhode Island suppressed 34.79 grams of cocaine base seized from defendant Kenny Barnes pursuant to what the court deemed an illegal body cavity search. United States v. Barnes, 443 F.Supp.2d 248 (D.R.I.2006). The Government now appeals the suppression ruling. At issue in this interlocutory appeal is whether the police officers conducting the cavity search had the requisite reasonable suspicion. After careful consideration, we vacate the order and remand for further proceedings consistent with this opinion.

I. Facts

On August 27, 2005, Barnes was sitting in the driver's seat of his illegally parked car. Police officer George McMann of the Woonsocket, Rhode Island Police Department ran the car's license plate number through the National Crime Information Center database on the laptop computer in his patrol car and found that Barnes's driver's license had been suspended. McMann approached the car and requested Barnes's license. Barnes presented documents that purportedly showed that his license had been reinstated. McMann stepped away from the car to review the documents.

Finding the documents lacking, McMann, accompanied by Lieutenant John Picard and Officer Cote, who had subsequently arrived on the scene, patted Barnes down for weapons. Finding none, they removed Barnes to McMann's patrol car. Officers McMann and Cote recognized Barnes as the victim of a shooting that had occurred approximately one month earlier.¹

In the course of conducting an inventory search of Barnes's car, as is customary before a car is impounded, the officers smelled a strong odor of marijuana in the vehicle and found remnants of a marijuana cigarette, including flakes of what they suspected to be marijuana, in the car's front middle console. The officers arrested Barnes, and searched the trunk of the vehicle, finding a large bag of marijuana, a smaller bag of marijuana, and a digital scale. Barnes was also found to be carrying two cellular phones and $685 in cash. The officers then radioed their station that they were bringing Barnes in, and drove to the station.

Once at the station, McMann, accompanied by an Officer Cahill, strip searched Barnes in a shower area designated as the station's strip search facility.² At McMann's instruction, Barnes removed his clothing and lowered his underwear around his legs. No contraband or weapons were found at that point. McMann then instructed Barnes to turn around, bend over, and spread his buttocks so that the officers could see whether he had anything concealed in his anal area. Barnes refused to do so. McMann informed Barnes that it was station policy to conduct the body cavity search as part of the strip search and that the examination would only be visual.

At this point in the search, as McMann was explaining to Barnes that he had to submit to the visual cavity search, Detective Daniel Turgeon, a ten-year veteran of the narcotics unit, arrived at the strip search area. Turgeon testified that he had heard that Barnes was being brought in and that he wanted to ensure that Barnes was strip searched. He had received a tip from some sources that Barnes was reputed to deal in drugs and, specifically, known to "cheek" drugs — i.e., conceal drugs between his buttocks.³

When Turgeon arrived at the strip search — before Barnes submitted to the body cavity search — he told McMann that "Mr. Barnes needed to be strip searched."⁴ Turgeon also told Barnes that the cavity search "was protocol with the Police Department" and that he had to submit. After some discussion, Barnes reached behind his back and removed a bag containing cocaine base from between his buttocks. He then submitted to a visual cavity search, which uncovered no further drugs.⁵

Before the district court, McMann testified that he thought a strip search of Barnes, and implicitly a visual body cavity search, was warranted because (1) he suspected that Barnes was a drug dealer, (2) marijuana was found in the car, (3) Barnes had time to conceal drugs on his body when McMann stepped away from Barnes's car to inspect Barnes's papers, and (4) he knew that some drug dealers concealed drugs between their buttocks. He conceded that he did not have any specific information as to where Barnes kept drugs on his person.

The district court first held that the potential for Barnes to be carrying concealed drugs or a weapon on his person "clearly justified" McMann's decision to conduct a strip search. Barnes, 443 F.Supp.2d at 253. The court went on, however, to determine that McMann conducted the visual body cavity search without reasonable suspicion. While recognizing that Turgeon had "information that Barnes was reputed to `cheek' drugs," the court determined that the knowledge could not be imputed to McMann because it "was not communicated to Officer McMann before the search was conducted." Id. McMann's knowledge, alone, was an insufficient basis to support a reasonable suspicion that Barnes had drugs concealed between his buttocks. Id. Specifically, the court opined that "it paints with too broad a brush to say that every person arrested on a drug charge automatically is subject not only to a strip search but also to a visual body cavity search[;] . . . more individualized suspicion . . . is required to extend the search to bodily cavities." Id. at 253-54.

II. Discussion

In an appeal from a suppression order, we review the district court's legal conclusions de novo. See Ornelas v. United States, 517 U.S. 690, 699, 116 S.Ct 1657, 134 L.Ed.2d 911 (1996). Subsidiary factual findings are reviewed for clear error, "giv[ing] due weight to inferences drawn from those facts by resident judges and local law enforcement officers." Id. "A clear error exists only if, after considering all the evidence, we are left with a definite and firm conviction that a mistake has been made." United States v. McCarthy, 77 F.3d 522, 529 (1st Cir.1996). Clear error does not exist if "any reasonable view of the evidence supports the decision." Id.

"[T]he reasonable suspicion standard governs strip and visual body cavity searches in the arrestee context. . . ." Swain v. Spinney, 117 F.3d 1, 7 (1st Cir. 1997). The suspicion must be specific to the individual being searched. Roberts v. Rhode Island, 239 F.3d 107, 110 (1st Cir. 2001) ("[O]fficers [must] have a reasonable suspicion that a particular detainee harbors contraband prior to conducting a . . . visual body cavity search."). Moreover, in evaluating whether the suspicion was reasonable, we "look at the totality of the circumstances of each case to see whether the detaining officer ha[d] a particularized and objective basis for suspecting legal wrongdoing." United States v. Arvizu, 534 U.S. 266, 273, 122 S.Ct. 744, 151 L.Ed.2d 740 (2002)(internal quotation marks omitted); United States v. Monteiro, 447 F.3d 39, 43 (1st Cir.2006) (grounding reasonable suspicion in "specific and articulable facts"). Officers may "draw on their own experience and specialized training to make inferences from and deductions about the cumulative information available to them," but a "mere hunch" does not rise to reasonable suspicion. Arvizu, 534 U.S. at 273-74, 122 S.Ct. 744.

We will not disturb the district court's determination that McMann, standing alone, did not have reasonable suspicion to conduct a visual body cavity search of Barnes. The initial strip search for contraband and weapons was clearly justified given Barnes's arrest for a drug trafficking crime. See, e.g., Burns v. Loranger, 907 F.2d 233, 238-39 (1st Cir.1990). However, a visual body cavity search involves a greater intrusion into personal privacy. See, e.g., Blackburn v. Snow, 771 F.2d 556, 561 n. 3 (1st Cir.1985) (distinguishing between strip searches and various types of body cavity searches). Accordingly, prior to conducting a visual body cavity search, we require a more particularized suspicion that contraband is concealed. See Swain, 117 F.3d at 7 (requiring reasonable suspicion that the arrestee is concealing contraband or weapons). The evidence before McMann — that Barnes was a suspected drug dealer in possession of narcotics and that some drug dealers conceal drugs between their buttocks — did not endow him with an individualized suspicion that Barnes was "cheeking" drugs.

A visual body cavity search is not necessarily invalid because the knowledge held by the individual officer conducting the search is insufficient to support reasonable suspicion. We have recognized that reasonable suspicion or even probable cause can be established by the "collective knowledge" or "pooled knowledge" principle. See, e.g., United States v. Paradis, 802 F.2d 553, 557 (1st Cir.1986) (finding probable cause for arrest on the basis of collective knowledge) (internal citations omitted); United States v. Pardue, 385 F.3d 101, 106-07 (1st Cir.2004), cert. denied, 543 U.S. 1169, 125 S.Ct. 1353, 161 L.Ed.2d 146 (2005). Accordingly, the "focus is upon the collective knowledge possessed by, and the aggregate information available to, all the officers involved in the investigation." United States v. Fiasconaro, 315 F.3d 28, 36 (1st Cir.2002) (quoting United States v. Winchenbach, 197 F.3d 548, 555 (1st Cir.1999)). Specifically, reasonable suspicion can be imputed to the officer...