U.S. v. Jones

• Decision Date: 14 December 1999
• Docket Number: No. 99-3027,99-3027
• Citation: 254 F.3d 692
• Parties: (8th Cir. 2001) UNITED STATES OF AMERICA, PLAINTIFF - APPELLEE, v. PAUL RAY JONES, DEFENDANT - APPELLANT. Submitted:
• Court: U.S. Court of Appeals — Eighth Circuit

Page 692

254 F.3d 692 (8th Cir. 2001)

UNITED STATES OF AMERICA, PLAINTIFF - APPELLEE, v. PAUL RAY JONES, DEFENDANT - APPELLANT.

No. 99-3027

UNITED STATES COURT OF APPEALS FOR THE EIGHTH CIRCUIT

Submitted: December 14, 1999

Filed: June 18, 2001

Appeal from the United States District Court for the District of Nebraska.

Before McMILLIAN, John R. Gibson, and Magill, Circuit Judges.

John R. Gibson, Circuit Judge.

Paul Ray Jones pled guilty to a charge of possessing cocaine with intent to distribute it, but he reserved the right to appeal the district court's denial of his motion to suppress evidence. We reverse the district court's ruling on the suppression motion and accordingly vacate Jones's conviction and sentence.

Jones arrived at Omaha's Eppley Airfield on a flight from Phoenix. As Jones left the airport, Nebraska State Patrol Investigator Richard Lutter noticed that rather than proceeding in a straight line, Jones walked around a bank of telephones. Lutter found this suspicious and began to watch Jones. He noticed that Jones looked behind him three times as he walked through the terminal and that Jones did not stop at the luggage claim, but walked straight out to the taxi stand. Lutter testified that as a trained narcotics investigator, when he sees someone go directly to the taxi stand, he suspects the person is trying to limit his or her time in the public area by moving "quickly from the airplane to a semi-secure or at least a mobile area." Lutter said that when he sees people who appear to be nervous and who proceed straight from the plane to the taxi stand, he will "talk to them on each and every occasion." Lutter therefore used his cellular phone to summon another officer and walked up to Jones at the taxi stand.

Lutter displayed his badge to Jones and told him that he was not in trouble or under arrest. Lutter asked Jones if he would speak with him. Jones turned around to talk to Lutter. Jones complied with Lutter's requests to show identification and his plane ticket, which showed Jones's flight originated in Los Angeles, a "source city" for drugs. Lutter noticed a bulge in the front part of Jones's waistband that he thought did not appear to be part of Jones's anatomy. Lutter suspected that the bulge might be illegal contraband secured to Jones's midsection. He told Jones his job was to look for people transporting narcotics and asked Jones if he had any narcotics. Jones said no. Lutter then asked if he could search Jones and his luggage, and Jones said, "Yes, you can search my bag," and handed Lutter the bag. By this time, the other officer had arrived and was standing beside Lutter.

Lutter then specifically asked for permission to search Jones's person. Jones took a step back. He said, "If there's a problem, I can take off all my clothes and you can empty out my bag." Lutter advanced a step toward Jones and said that it would not be necessary for Jones to take off his clothes, but that he wanted to search Jones's person. Jones again stepped back and repeated his offer to take off all his clothes. Lutter asked Jones about the bulge at his waist. Jones said he had had surgery, and he put his hands on the bulge. Although Lutter's report written immediately after the incident reports no further gestures, at the suppression hearing Lutter said that Jones then held his arms out away from his body about ten to eighteen inches from his midsection, with his palms turned out. Lutter touched the bulge and thought it felt like "packaging that is consistent with the packaging of illegal narcotics." He arrested Jones and searched him. The bulge turned out to be a package of cocaine, and Lutter found another such bag strapped to Jones's back.

Jones moved to suppress the cocaine, arguing that Lutter stopped him without reasonable suspicion and searched him without probable cause. After a hearing, the magistrate judge recommended denial of Jones's suppression motion. The magistrate judge found that the encounter between Jones and Lutter was consensual: Jones expressly consented to the search of the bag, and he impliedly consented to Lutter's touching of the bulge. The magistrate concluded that after Lutter touched the package, there was "a basis" to arrest and search Jones.

The district court accepted the magistrate judge's report and recommendation. The district court found, "The encounter began as a consensual one and remained consensual." In particular, the district court found that Jones expressed consent to Lutter's touching his midsection by saying he would take off his clothes and by moving his arms away from his body when Lutter asked to search him. The district court also found that this expression of consent was voluntary: "Even though the Defendant's consent was not enthusiastically given and was implied by his actions and statements of being willing to remove his clothing, it was knowing and voluntary."

On appeal, Jones argues that he did not express consent by word or gesture to Lutter's touching him and even if his actions could be taken as consent, they were not voluntary.

The determination of whether Jones expressed consent is a question of fact, which we review for clear error. See United States v. Dupree, 202 F.3d 1046, 1049 (8th Cir. 2000). The precise question is not whether Jones consented subjectively, but whether his conduct would have caused a reasonable person to believe that he consented. See United States v. Sanchez, 32 F.3d 1330, 1333-35 (8th Cir. 1994) (officer reasonably believed defendant consented where companion appeared to translate requests into language defendant understood, defendant signed consent to search, and companion assisted in opening truck). Consent can be inferred from words, gestures, and other conduct. See United States v. Mendoza-Cepeda, 250 F.3d 626, 627 (8th Cir.2001) (consent to touch misdsection expressed by suspect raising arms in response to request); United States v. Gleason, 25 F.3d 605, 607 (8th Cir. 1994) (defendant consented to search for weapons and cheerfully assisted in search that discovered other evidence of robbery; officer could infer consent to general search from assistance and demeanor); United States v. Barahona, 990 F.2d 412, 417-418 (8th Cir. 1993) (consent to search of car where defendant read consent form, said, "You can look, sir," unlocked car doors, and waved arm toward car in "inviting manner").

The district court found that Jones's consent "was implied by his actions and statements of being willing to remove his clothing." By "actions" the district court apparently referred to Jones's gesture of opening his arms that Lutter testified about at the hearing, but omitted from his contemporaneous report. This gesture alone must bear the weight of the district court's finding of consent, because it is clear that Lutter did not interpret Jones's comments about taking off his clothing as a consent to Lutter touching him. Lutter testified that after he asked if he could search Jones, Jones stepped back as he said, "If there's a problem, I can remove my clothes and empty my bag." Lutter obviously did not interpret this as consent, because he asked Jones again for permission to search his person. Jones repeated the step back and repeated that he would take off his clothes. Lutter still did not proceed to search Jones on the strength of the "offer" to disrobe, but asked Jones about the bulge. After talking about the bulge, Lutter said he did not touch Jones until Jones opened his arms in the gesture that Lutter took to convey consent. If we were acting as fact finders, we would be reluctant to hang a finding of consent on this late-remembered gesture. Nevertheless, the district court did so, and its credibility findings are well-nigh unreviewable, so long as the findings are not internally inconsistent or based on testimony that is incoherent, implausible, or contradicted by objective evidence in the case. See United States v. Heath, 58 F.3d 1271, 1275 (8th Cir. 1995) (credibility findings virtually unreviewable); Gleason, 25 F.3d at 607 (same); see generally Anderson v. City of Bessemer City, 470 U.S. 564, 575 (1985) (district court's credibility determination can virtually never be clear error if based on coherent testimony not contradicted by extrinsic evidence and if finding not internally inconsistent). The district court's finding of consent is not internally inconsistent, nor is it based on testimony that is incoherent or implausible or that was contradicted by objective evidence. Moreover, the facts of Jones's case are extremely similar to our recent case of Mendoza-Cepeda, in which a suspect who raised his arms in response to the investigator's request to touch his midsection was found to have consented to the touching. 2001 WL 527171 at *1. The finding is therefore not clearly erroneous.

The question of whether an expression of consent is voluntary or coerced is also a question of fact, subject to review for clear error. See United States v. Perez, 200 F.3d 576, 579 (8th Cir. 2000); United States v. Hathcock, 103 F.3d 715, 719-20 (8th Cir. 1997). We have identified factors to be considered in making this determination, including personal characteristics of the defendant, such as age, education, intelligence, sobriety, and experience with the law; and features of the context in which the consent was given, such as the length of detention or questioning, the substance of any discussion between the defendant and police preceding the consent, whether the defendant was free to leave or was subject to restraint, and whether the defendant's contemporaneous reaction to the search was consistent with consent. See id. at 719-20.

The district court found: "[T]he Defendant was an adult who was educated through the eleventh grade, has had experience with law enforcement, did not appear to be under the influence of drugs or alcohol, was in a public place, was not threatened or punished, and did not protest the search." The...