U.S. v. Blake

Decision Date17 November 1989
Docket NumberNo. 88-5900,88-5900
Citation888 F.2d 795
PartiesUNITED STATES of America, Plaintiff-Appellant, v. Oswald G. BLAKE, Leonard Eason, Defendants-Appellees.
CourtU.S. Court of Appeals — Eleventh Circuit

Dexter Lehtinen, U.S. Atty., William Shockley, Sonia Escobio O'Donnell, Linda Collins Hertz, Asst. U.S. Attys., Miami, Fla., for U.S.

Fletcher Peacock, Asst. Federal Public Defender, Ft. Lauderdale, Fla., for Blake.

Michael J. O'Kane, Ft. Lauderdale, Fla., for Eason.

Appeal from the United States District Court for the Southern District of Florida.

Before ANDERSON and COX, Circuit Judges, and SHOOB *, District Judge.

ANDERSON, Circuit Judge:

In this appeal, the United States argues that the district court erred in granting the motion to suppress filed by defendants Oswald G. Blake and Leonard Eason. The issue in this case involves whether police officers exceeded the scope of the defendants' consent to a search of their "person," when, upon receiving the consent, the officers immediately reached into the defendants' crotch area and felt their genitals. Upon review, we find that the trial court's factual findings are not clearly erroneous, and consequently we affirm the district court.

I. FACTUAL BACKGROUND 1

On December 11, 1987, three Broward County Sheriff's Deputies were working at the South Terminal in the Fort Lauderdale/Hollywood International Airport. As defendants Blake and Eason were leaving the Piedmont Airlines ticket counter and entering into the middle of an airport corridor, they were approached by two of the deputies. 2 The officers, dressed in plain-clothes, identified themselves as deputy sheriffs to Blake and Eason by showing their badges and asked Blake and Eason if they would consent to speak with them. After Blake and Eason gave their consent, the officers asked them for their plane tickets and identification. Blake responded that he had a driver's license; Eason said that he had no identification. One of the officers, Detective Hendrick, renewed the request to see their tickets. When Blake responded that the tickets were in his carry-on bag, Hendrick suggested that they move over to a bench approximately five feet away.

At the bench, Blake opened his bag and gave Hendrick the airline tickets. The tickets were one-way tickets to Baltimore in the names of "Omar Blake" and "Williams." 3 After examining the tickets, Hendrick immediately returned them to Blake and again asked to see their identification. Blake gave Hendrick his driver's license, and Eason again responded that he did not have any identification. Hendrick noted that Blake's driver's license was in his name and returned the license to him immediately.

Detective Hendrick then asked defendants for permission to search their baggage and their persons for drugs. He explained to Blake and Eason that they had the right to refuse consent to the search. Both defendants agreed to a search of their luggage and their persons. Within seconds of Blake's having given his consent, Hendrick reached into Blake's groin region where he did a "frontal touching" 4 of the "outside of [Blake's] trousers" 5 in "the area between the legs where the penis would normally be positioned." 6 Upon reaching into Blake's crotch, Hendrick felt an object and heard a crinkling sound.

Hendrick repeated this procedure upon receiving Eason's consent and, as with Blake, felt a foreign object in Eason's crotch and heard a crinkling sound. Hendrick and the other officers then handcuffed Blake and Eason and advised them of their Miranda rights. Blake and Eason were then taken to the airport's drug interdiction office outside the public concourse where Hendrick removed a package of suspected crack cocaine from each of their crotches. A narcotics-sniffing dog was employed to search the defendants' bags. A subsequent search of the bag revealed drug paraphernalia in the form of numerous glassine envelopes and little zip-lock bags typically used for packaging crack cocaine among the contents of the luggage.

On December 23, 1987, a grand jury empaneled in the Southern District of Florida indicted both Blake and Eason, charging them with conspiracy to possess with intent to distribute at least 50 grams of drugs containing a cocaine base in violation of 21 U.S.C.A. Sec. 846 and with possession with intent to distribute over 50 grams of narcotics containing a cocaine base in violation of 21 U.S.C.A. Sec. 841(a)(1) and 18 U.S.C.A. Sec. 2. On August 5, 1988, the district court granted Blake and Eason's motion to suppress, holding that the police officers in question exceeded the scope of the consent given by Blake and Eason, and that the search as conducted by the officers was outrageous and unreasonable. 7 United States v. Blake, 718 F.Supp. 925 (S.D.Fla.1988). The government's appeal followed. See 18 U.S.C.A. Sec. 3731.

II. LEGAL ANALYSIS

It has been long recognized that police officers, possessing neither reasonable suspicion nor probable cause, may nonetheless search an individual without a warrant so long as they first obtain the voluntary consent of the individual in question. Schneckloth v. Bustamonte, 412 U.S. 218, 93 S.Ct. 2041, 36 L.Ed.2d 854 (1973). In conducting a search pursuant to a properly obtained, voluntary consent, however, the extent of the search must be confined to the terms of its authorization. United States v. Rackley, 742 F.2d 1266, 1271 (11th Cir.1984). "A suspect's consent can impose limits on the scope of a search in the same way as do the specifications of a warrant," and those limits serve to restrain the permissible boundaries of the search. United States v. Milian-Rodriguez, 759 F.2d 1558, 1563 (11th Cir.), cert. denied, 474 U.S. 845, 106 S.Ct. 135, 88 L.Ed.2d 112 (1985).

Whether a suspect voluntarily gave consent to a search is a question of fact to be determined by the totality of the circumstances. Schneckloth v. Bustamonte, 412 U.S. at 249-50, 93 S.Ct. at 2059; United States v. Chemaly, 741 F.2d 1346, 1352 (11th Cir.1984), vacated, 741 F.2d 1363, reinstated on reh'g, 764 F.2d 747 (11th Cir.1985) (en banc). The government bears the burden of proving both the existence of consent and that the consent was not a function of acquiescence to a claim of lawful authority but rather was given freely and voluntarily. United States v. Massell, 823 F.2d 1503, 1507 (11th Cir.1987). The district court's factual findings as to whether or not voluntary consent was given may only be disturbed if they are clearly erroneous. Id.; United States v. Chemaly, 741 F.2d at 1353.

Similarly, whether there were any limitations placed on the consent given and whether the search conformed to those limitations is to be determined by the totality of the circumstances. See United States v. Milian-Rodriguez, 759 F.2d at 1563-64. The trial court's factual determinations as to these two issues are also due deference on appeal and will not be overturned unless clearly erroneous. See id. Accord United States v. Espinosa, 782 F.2d 888, 892 (10th Cir.1986); United States v. Hardin, 710 F.2d 1231, 1236 (7th Cir.), cert. denied, 464 U.S. 918, 104 S.Ct. 286, 78 L.Ed.2d 263 (1983); United States v. Sierra-Hernandez, 581 F.2d 760, 764 (9th Cir.) (Kennedy, J.), cert. denied, 439 U.S. 936, 99 S.Ct. 333, 58 L.Ed.2d 333 (1978).

A.

The determination as to whether a suspect's consent is voluntary is not susceptible to neat talismanic definitions; rather, the inquiry must be conducted on a case-by-case analysis. Schneckloth v. Bustamonte, 412 U.S. at 224-25, 93 S.Ct. at 2046. To assist the lower courts in making their determinations, this court has, on prior occasions, identified a non-exhaustive list of relevant factors to consider when making the assessment of whether consent to a warrantless search is voluntary:

voluntariness of the defendant's custodial status, the presence of coercive police procedure, the extent and level of the defendant's cooperation with police, the defendant's awareness of his right to refuse to consent to the search, the defendant's education and intelligence, and, significantly, the defendant's belief that no incriminating evidence will be found.

United States v. Chemaly, 741 F.2d at 1352 (quoting United States v. Phillips, 664 F.2d 971, 1023-24 (5th Cir. Unit B 1981) (footnotes omitted), cert. denied, 457 U.S 1136, 102 S.Ct. 2965, 73 L.Ed.2d 1354 (1982)). Given the extremely intimidating nature of airport stops, this court has emphasized that verbal agreements acquiescing in officers' requests should be "scrutinized exceptionally closely to ensure a complete absence of coercive influence." United States v. Berry, 670 F.2d 583, 596-98 (5th Cir. Unit B 1982) (en banc). 8 See United States v. Espinosa-Guerra, 805 F.2d 1502, 1507-08 & n. 18 (11th Cir.1986).

In this case, we have no problem in concluding that the district court's finding that the defendants consented to a search is not clearly erroneous. The officers were in plainclothes and did not appear to be carrying weapons. Detective Hendrick asked whether the defendants would show him their tickets and identification; he did not demand them that they do so. After receiving and reviewing the tickets and Blake's driver's license, he immediately returned them to the defendants. Additionally, the officers applied no coercive tactics and did not attempt to remove the defendants from the public concourse. Furthermore, Hendrick informed them of their right both to leave and not to consent to the requested search.

In short, none of the factors that this court has identified as circumstances suggesting police coercion that might render consent involuntary--e.g., an officer blocking or otherwise impairing the individual's progress, United States v. Bowles, 625 F.2d 526 (5th Cir.1980); an officer retaining an individual's tickets or identification; United States v. Chemaly, 741 F.2d at 1352; United States v. Robinson, 690 F.2d 869, 875 (11th Cir.1982); an officer failing to inform the...

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