Opinion for the Court filed by Circuit Justice THOMAS.
Dissenting opinion filed by Circuit Judge WALD.
THOMAS, Circuit Justice:
The principal question presented is whether a consent to a body search for drugs, without more, authorizes the sort of careful frisk described in Terry v. Ohio, 392 U.S. 1, 88 S.Ct. 1868, 20 L.Ed.2d 889 (1968). We hold that it does.
I
On February 17, 1990, Dylan Rodney stepped off a bus that had arrived in Washington, D.C., from New York City. As Rodney left the bus station, Detective Vance Beard, dressed in plain clothes and carrying a concealed weapon, approached him from behind. A second officer waited nearby. Beard displayed identification and asked if Rodney would talk to him. Rodney agreed.
Beard asked Rodney whether he lived in either Washington or New York. Rodney replied that he lived in Florida, but had come to Washington to try to find his wife. She lived on Georgia Avenue, Rodney said, although he was unable to identify any more precise location.
Beard asked Rodney whether he was carrying drugs in his travel bag. After Rodney said no, Beard obtained permission to search the bag. As he did so, the other officer advanced to within about five feet of Rodney. The search failed to turn up any contraband.
Beard then asked Rodney whether he was carrying drugs on his person. After Rodney again said no, Beard requested permission to conduct a body search. Rodney said “sure” and raised his arms above his head. Beard placed his hands on Rodney’s ankles and, in one sweeping motion, ran them up the inside of Rodney’s legs. As he passed over the crotch area, Beard felt small, rock-like objects. Rodney exclaimed: “That’s me!” Detecting otherwise, Beard placed Rodney under arrest.
At the police station, Beard unzipped Rodney’s pants and retrieved a plastic bag containing a rock-like substance that was identified as cocaine base. Rodney was charged with possession and intent to distribute.
On April 10, 1990, Rodney moved to suppress the crack. Rodney argued (1) that he had not consented voluntarily to the body search; (2) that even if he had done so, the consent did not include a search of his crotch area; and (3) that his arrest was unsupported by probable cause.
The district court held a hearing and denied the motion, finding that Rodney had “[given] his consent voluntarily to [the] search [of] his person and belongings.” United States v. Rodney, Crim. No. 90-0123, at 1 (D.D.C. Apr. 27, 1990). Rodney entered a conditional guilty plea, reserving the right to withdraw it if this court reversed the denial of his suppression motion.
II
Rodney first contends that the district court erred in finding that his consent to the body search was voluntary, and [297]*297therefore not prohibited by the Fourth Amendment. In determining the voluntariness of a consent, a district court must examine “the totality of all the surrounding circumstances — both the characteristics of the accused and the details of the interrogation.” Schneckloth v. Bustamonte, 412 U.S. 218, 226, 93 S.Ct. 2041, 2047, 36 L.Ed.2d 854 (1973). Relevant factors include:
the youth of the accused; his lack of education; or his low intelligence; the lack of any advice to the accused of his constitutional rights; the length of detention; the repeated and prolonged nature of the questioning; and the use of physical punishment such as the deprivation of food or sleep.
Id. (citations omitted). We review only for clear error. See United States v. Battista, 876 F.2d 201, 207 (D.C.Cir.1989).
On this record, we find no clear error. On the one hand, some evidence suggests an involuntary consent. Rodney testified that he thought three, rather than two, officers were covering him; that the officers were much bigger than he; and that he was young (twenty-four) and relatively uneducated (to the tenth grade) at the time. He also testified that before the events leading to his arrest, he had had four unpleasant encounters with the police: each time he had refused their request to search him, but each time they had searched him anyway. On the other hand, Beard’s testimony indicates that the police conduct here bore no resemblance to the sort of “aggressive questioning, intimidating actions, or prolonged police presence,” United States v. Brady, 842 F.2d 1313, 1315 (D.C.Cir.1988), that might invalidate a consent. During the encounter, according to Beard, his gun was concealed; he wore plain clothes and spoke in a conversational tone; and no other officer came within five feet of Rodney. The district court could have weighed Beard’s evidence more heavily than Rodney’s. See Anderson v. City of Bessemer City, 470 U.S. 564, 574, 105 S.Ct. 1504, 1511, 84 L.Ed.2d 518 (1985). Thus, even assuming that the court credited Rodney’s testimony in addition to Beard’s, the court committed no clear error in finding the consent voluntary.1
Ill
Rodney next argues that even if he consented voluntarily to the body search, he did not consent to the search of his crotch area. A consensual search cannot exceed the scope of the consent. The scope of the consent is measured by a test of “ ‘objective’ reasonableness”: it depends on how broadly a reasonable observer would have interpreted the consent under the circumstances. See Florida v. Jimeno, — U.S. -, 111 S.Ct. 1801, 1803-04, 114 L.Ed.2d 297 (1991). Here, Rodney clearly consented to a search of his body for drugs. We conclude that a reasonable person would have understood that consent to encompass the search undertaken here.
Under Jimeno, “[t]he scope of a search is generally defined by its expressed object.” Id. Ill S.Ct. at 1804. In this case, Rodney authorized a search for drugs. Dealers frequently hide drugs near their genitals. See, e.g., United States v. Broxton, 926 F.2d 1180, 1181 (D.C.Cir.1991) (per curiam); United States v. Wright, 924 F.2d 545, 546 (4th Cir.1991); United States v. Winfrey, 915 F.2d 212, 215-16 (6th Cir.1990), cert. denied, — U.S. -, 111 S.Ct. 709, 112 L.Ed.2d 698 (1991); United States v. Wilson, 895 F.2d 168, 170 (4th Cir.1990) (per curiam); United States v. Agyen, 842 F.2d 203, 204 (8th Cir.), cert. denied, 486 U.S. 1035, 108 S.Ct. 2021, 100 L.Ed.2d 608 (1988); United States v. Lehmann, 798 F.2d 692, 693 (4th Cir.1986). Indeed, Beard testified that his colleagues make up to 75 percent of their drug recov[298]
Free access — add to your briefcase to read the full text and ask questions with AI
Opinion for the Court filed by Circuit Justice THOMAS.
Dissenting opinion filed by Circuit Judge WALD.
THOMAS, Circuit Justice:
The principal question presented is whether a consent to a body search for drugs, without more, authorizes the sort of careful frisk described in Terry v. Ohio, 392 U.S. 1, 88 S.Ct. 1868, 20 L.Ed.2d 889 (1968). We hold that it does.
I
On February 17, 1990, Dylan Rodney stepped off a bus that had arrived in Washington, D.C., from New York City. As Rodney left the bus station, Detective Vance Beard, dressed in plain clothes and carrying a concealed weapon, approached him from behind. A second officer waited nearby. Beard displayed identification and asked if Rodney would talk to him. Rodney agreed.
Beard asked Rodney whether he lived in either Washington or New York. Rodney replied that he lived in Florida, but had come to Washington to try to find his wife. She lived on Georgia Avenue, Rodney said, although he was unable to identify any more precise location.
Beard asked Rodney whether he was carrying drugs in his travel bag. After Rodney said no, Beard obtained permission to search the bag. As he did so, the other officer advanced to within about five feet of Rodney. The search failed to turn up any contraband.
Beard then asked Rodney whether he was carrying drugs on his person. After Rodney again said no, Beard requested permission to conduct a body search. Rodney said “sure” and raised his arms above his head. Beard placed his hands on Rodney’s ankles and, in one sweeping motion, ran them up the inside of Rodney’s legs. As he passed over the crotch area, Beard felt small, rock-like objects. Rodney exclaimed: “That’s me!” Detecting otherwise, Beard placed Rodney under arrest.
At the police station, Beard unzipped Rodney’s pants and retrieved a plastic bag containing a rock-like substance that was identified as cocaine base. Rodney was charged with possession and intent to distribute.
On April 10, 1990, Rodney moved to suppress the crack. Rodney argued (1) that he had not consented voluntarily to the body search; (2) that even if he had done so, the consent did not include a search of his crotch area; and (3) that his arrest was unsupported by probable cause.
The district court held a hearing and denied the motion, finding that Rodney had “[given] his consent voluntarily to [the] search [of] his person and belongings.” United States v. Rodney, Crim. No. 90-0123, at 1 (D.D.C. Apr. 27, 1990). Rodney entered a conditional guilty plea, reserving the right to withdraw it if this court reversed the denial of his suppression motion.
II
Rodney first contends that the district court erred in finding that his consent to the body search was voluntary, and [297]*297therefore not prohibited by the Fourth Amendment. In determining the voluntariness of a consent, a district court must examine “the totality of all the surrounding circumstances — both the characteristics of the accused and the details of the interrogation.” Schneckloth v. Bustamonte, 412 U.S. 218, 226, 93 S.Ct. 2041, 2047, 36 L.Ed.2d 854 (1973). Relevant factors include:
the youth of the accused; his lack of education; or his low intelligence; the lack of any advice to the accused of his constitutional rights; the length of detention; the repeated and prolonged nature of the questioning; and the use of physical punishment such as the deprivation of food or sleep.
Id. (citations omitted). We review only for clear error. See United States v. Battista, 876 F.2d 201, 207 (D.C.Cir.1989).
On this record, we find no clear error. On the one hand, some evidence suggests an involuntary consent. Rodney testified that he thought three, rather than two, officers were covering him; that the officers were much bigger than he; and that he was young (twenty-four) and relatively uneducated (to the tenth grade) at the time. He also testified that before the events leading to his arrest, he had had four unpleasant encounters with the police: each time he had refused their request to search him, but each time they had searched him anyway. On the other hand, Beard’s testimony indicates that the police conduct here bore no resemblance to the sort of “aggressive questioning, intimidating actions, or prolonged police presence,” United States v. Brady, 842 F.2d 1313, 1315 (D.C.Cir.1988), that might invalidate a consent. During the encounter, according to Beard, his gun was concealed; he wore plain clothes and spoke in a conversational tone; and no other officer came within five feet of Rodney. The district court could have weighed Beard’s evidence more heavily than Rodney’s. See Anderson v. City of Bessemer City, 470 U.S. 564, 574, 105 S.Ct. 1504, 1511, 84 L.Ed.2d 518 (1985). Thus, even assuming that the court credited Rodney’s testimony in addition to Beard’s, the court committed no clear error in finding the consent voluntary.1
Ill
Rodney next argues that even if he consented voluntarily to the body search, he did not consent to the search of his crotch area. A consensual search cannot exceed the scope of the consent. The scope of the consent is measured by a test of “ ‘objective’ reasonableness”: it depends on how broadly a reasonable observer would have interpreted the consent under the circumstances. See Florida v. Jimeno, — U.S. -, 111 S.Ct. 1801, 1803-04, 114 L.Ed.2d 297 (1991). Here, Rodney clearly consented to a search of his body for drugs. We conclude that a reasonable person would have understood that consent to encompass the search undertaken here.
Under Jimeno, “[t]he scope of a search is generally defined by its expressed object.” Id. Ill S.Ct. at 1804. In this case, Rodney authorized a search for drugs. Dealers frequently hide drugs near their genitals. See, e.g., United States v. Broxton, 926 F.2d 1180, 1181 (D.C.Cir.1991) (per curiam); United States v. Wright, 924 F.2d 545, 546 (4th Cir.1991); United States v. Winfrey, 915 F.2d 212, 215-16 (6th Cir.1990), cert. denied, — U.S. -, 111 S.Ct. 709, 112 L.Ed.2d 698 (1991); United States v. Wilson, 895 F.2d 168, 170 (4th Cir.1990) (per curiam); United States v. Agyen, 842 F.2d 203, 204 (8th Cir.), cert. denied, 486 U.S. 1035, 108 S.Ct. 2021, 100 L.Ed.2d 608 (1988); United States v. Lehmann, 798 F.2d 692, 693 (4th Cir.1986). Indeed, Beard testified that his colleagues make up to 75 percent of their drug recov[298]*298eries from around the crotch area. For these reasons, we conclude that a request to conduct a body search for drugs reasonably includes a request to conduct some search of that area.
Although Jimeno states the test “generally” used to determine the scope of a consent to search, we doubt that the Supreme Court would have us apply that test unflinchingly in the context of body searches. At some point, we suspect, a body search would become so intrusive that we would not infer consent to it from a generalized consent, regardless of the stated object of the search. For example, although drugs can be hidden virtually anywhere on or in one’s person, a generalized consent to a body search for drugs surely does not validate everything up to and including a search of body cavities.
The search undertaken here, however, was not unusually intrusive, at least relative to body searches generally. It involved a continuous sweeping motion over Rodney’s outer garments, including the trousers covering his crotch area.2 In this respect, the search was no more invasive than the typical pat-down frisk for weapons described by the Supreme Court over two decades ago:
“[T]he officer must feel with sensitive fingers every portion of the [defendant’s] body. A thorough search must be made of the [defendant’s] arms and armpits, waistline and back, the groin and area about the testicles, and entire surface of the legs down to the feet.”
Terry v. Ohio, 392 U.S. 1, 17 n. 13, 88 S.Ct. 1868, 1877 n. 13, 20 L.Ed.2d 889 (1968) (citation omitted); see United States v. Clipper, 758 F.Supp. 756, 761 (D.D.C.1991) (noting that the police had discovered drugs in the defendant’s crotch during a “routine pat-down or frisk”). In Terry, the Court explained that the typical pat-down frisk, though serious, “may realistically be characterized as something less than a ‘full’ search.” 392 U.S. at 26, 88 S.Ct. at 1882. We conclude that the frisk of Rodney’s fully-clothed body involved nothing so intrusive, relative to body searches generally, as to require a separate consent above and beyond the consent to a body search that Rodney had given voluntarily.
Our conclusion is consistent with the Eleventh Circuit’s decision in United States v. Blake, 888 F.2d 795 (11th Cir.1989), on which Rodney relies heavily. In Blake, the officer performed a direct “ ‘frontal touching’ ” of the defendant’s private parts. Id. at 797 (citations omitted). The Eleventh Circuit found no clear error in the district court’s invalidation of that search. In so doing, however, it expressly left open the question whether “the traditional frisk search, described in Terry" would have been encompassed within the scope of the consent given there. See id. at 801 & n. 13. We hold only that Rodney’s generalized consent authorized the kind of “traditional frisk search” undertaken here, and we express no view on questions involving putatively consensual searches of a more intrunive nature.3
IV
Finally, Rodney asserts that Beard did not have probable cause to arrest him after feeling the small, rock-like objects near his groin. A warrantless arrest in a public place must be supported by probable cause. See, e.g., United States v. Lucas, 778 F.2d 885, 887 (D.C.Cir.1985). “[Probable cause exists if the totality of the circumstances, as viewed by a reasonable and prudent police officer in light of his training and experience, would lead that police officer to believe that a criminal offense has been or is being committed.” United States v. Green, 670 F.2d 1148, 1152 (D.C.Cir.1981).
[299]*299Beard, a police officer for more than twenty years, arrested Rodney after witnessing several curious events. First, Rodney gave Beard the improbable story that he had come to Washington to find his wife, who lived at an address unknown to him. Cf. United States v. Nurse, 916 F.2d 20, 24 (D.C.Cir.1990) (finding reasonable suspicion to stop in part because of “inappropriately vague answers to questions about [the suspect’s] destination and host”). Then, Beard felt small rock-like, objects hidden near Rodney’s crotch, which, Beard detected, were not part of Rodney’s body. Finally, when Rodney falsely declared that they were, Beard logically concluded that Rodney was likely carrying drugs.
Y
We conclude that Rodney voluntarily consented to a search of his body for drugs, which encompassed the frisk undertaken here. As a result of that frisk, we conclude further, Beard had probable cause to arrest Rodney. Accordingly, the judgment of conviction is
Affirmed.