Friday, January 06, 2012

U.S. v. Russell, No. 11-30030 (1-5-11) (McKeown with Tashima and Tallman).

Some resolutions for the New Year for drug couriers so as not to become crotchety, and having to spend next new year, and many more, in custody: (1) do not buy a last minute, one-way ticket in cash from Seattle to Anchorage on Alaska Airlines; (2) do check luggage; (3) try not to be described as "a black male wearing a leather jacket and a large necklace"; and (4) do not consent to a search of person, twice, and especially by holding up your arms and spreading your legs. The consent to search of person is especially important, because, in this situation, police can search the outside of your clothes, including the groin area. Here, the defendant did all the above described, had a prior drug and firearms conviction, and was suspected in drug trafficking. Upon the pat down, the officer "lifted up to feel," and felt something "hard and unnatural" in the groin area. Seven hundred Oxycodone pills were found. Did such a consensual search become unreasonable by patting down the groin? The 9th considers whether a pat down including the groin is reasonable under a general search of person consent, and finds it was under these circumstances: the defendant gave consent, was not under arrest, could have left, cooperated, and the pat down followed standard procedure. Indeed, the 9th noted that the groin was a common place to hide drugs, and even cited the officer saying that 80% of the narcotics he finds are in the groin area (note 2....maybe that is where the officer most often looks?). The 9th finds support in the other circuits, that have upheld over-the-clothes pat down searches were reasonable under a general consent.


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