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Warrantless pat-down suspects could learn a thing or two from the Don't-Touch-My-Junk passenger.
Sure, a traveler who opts out of full-body, virtual strip searches at the airport still must submit to a full-body, enhanced pat-down, but the "don't touch my junk" request can still be useful for stopping non-TSA, warrantless pat-downs.
A three-judge panel of the Ninth Circuit Court of Appeals ruled last week that a warrantless, full-body pat-down, which included a little groin-area groping, was a reasonable search that did not exceed the suspect's consent.
So what happened, and how can you more-effectively challenge similar searches for your clients?
Alaska Airlines notified Seattle Police Officer Matt Bruch that appellant Keith Russell had purchased a last-minute, one-way ticket to Anchorage, Alaska with cash. The airline agent also reported that Russell was traveling alone and did not check any luggage. Bruch suspected that Russell, who had previously been implicated in an Alaskan drug investigation, might be a drug courier, and proceeded to Russell's departure gate for a chat.
Bruch approached Russell, displayed his badge, and identified himself as a police officer investigating narcotics. Bruch told Russell that "he was free to go and he wasn't under arrest." Russell consented to Bruch's search of his bag and body, and spread his arms and legs to facilitate the search. Bruch gave Russell's groin area a standard, but thorough, pat-down. After feeling something "hard and unnatural" in Russell's groin area, Bruch arrested Russell. Police recovered 700 Oxycodone pills from Russell's underwear during the warrantless search. Russell moved to suppress the evidence.
The district court rejected Russell's motion, and the Ninth Circuit Court of Appeals affirmed the decision. Both courts agreed that Russell had consented, and, more-importantly, had never revoked that consent.
Here's where the "don't touch my junk" defense comes in.
Had Russell told Officer Bruch that he was revoking his consent, or even employed the less-eloquent but direct, "don't touch my junk" request, then he might have prevailed. Here, Russell neither objected, nor revoked consent. He did not attempt to shield his groin during the search, and did not complain to Officer Bruch after the fact.
As a search of a person for narcotics reasonably includes a search of the groin area, and the search was conducted by an officer of the same sex, the Ninth Circuit Court of Appeals ruled that Officer Bruch conducted a reasonable search.
If you're arguing a motion to suppress evidence from a seemingly-consensual, warrantless search, look for an indication that your client revoked his or her consent. Whether it's shielding body parts from the cops or verbally objecting, don't-touch-my-junk style, a suspect's contemporaneous objection is a good way to avoid a reasonable search finding.
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