United States v. Craig Sanders ( 2005 )


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  •                       United States Court of Appeals
    FOR THE EIGHTH CIRCUIT
    ___________
    No. 04-3601
    ___________
    United States of America,              *
    *
    Plaintiff - Appellee,      *
    * Appeal from the United States
    v.                               * District Court for the
    * Northern District of Iowa.
    Craig Sanders, a/k/a Sparks,           *
    *
    Defendant - Appellant.     *
    ___________
    Submitted : March 4, 2005
    Filed: September 23, 2005
    ___________
    Before BYE, JOHN R. GIBSON, and GRUENDER, Circuit Judges.
    ___________
    BYE, Circuit Judge.
    Craig Sanders appeals the district court's denial of his motion to suppress
    evidence seized during a search of his person. The government contends Sanders
    consented to the search and the district court properly denied the motion. We reverse
    and remand.
    I
    On June 17, 18 and 19, 2002, Cedar Rapids, Iowa, police officer Ryan
    Abodeely received telephone calls from an employee at a local motel regarding a
    guest, later identified as Sanders, who was acting suspiciously. The caller indicated
    many people were coming and going from Sanders's room, and hotel employees
    suspected he might be dealing drugs. On June 17 and 18, Abodeely went to the hotel
    and knocked on his door but no one answered. On June 19, Abodeely returned to the
    hotel and observed Sanders in the parking lot talking to someone in a car. Moments
    later Sanders got into another car and both drove off. Abodeely's investigation into
    his identity revealed he had previously been convicted of various drug felonies and
    was suspected of ongoing illegal drug trafficking. The parties agree, however,
    Abodeely did not, on any of the three occasions he visited the hotel, observe anything
    giving rise to probable cause to conduct a search.
    On June 20, Abodeely returned with another officer and again knocked on
    Sanders's hotel room door. Sanders testified the officers knocked loudly and
    persistently. Abodeely testified he could not remember how long he knocked. In
    either event, Sanders looked out the window of the room and moments later opened
    the door. Abodeely testified he and his colleague identified themselves as Cedar
    Rapids police officers, asked permission to enter the room, and Sanders allowed them
    to enter. Conversely, Sanders testified he initially blocked the officers' entry into the
    room but when ordered to step back, did so and allowed them to enter.
    Abodeely testified he told Sanders the officers suspected drug dealing and
    asked permission to search the room and Sanders's person. Sanders claims he was
    simply told to turn around and let the officers search him. Both agree Sanders raised
    his arms to facilitate a search of his person. Abodeely indicated he searched
    Sanders's upper body without incident but when he attempted to reach into one of his
    front pants pockets, Sanders lowered his hands and blocked Abodeely from going
    into his pockets. Abodeely ordered him to raise his hands and again attempted to
    search the pocket. This scenario repeated itself at least five times. Each time, as
    Abodeely attempted to reach into Sanders's pocket, there was a lowering of his arms
    and blocking of Abodeely's hands, only to be ordered to raise his hands again.
    -2-
    At the suppression hearing, Abodeely testified:
    And I began to move down towards his front pockets on his pants; as I
    did that, he kept bringing his hands down and tried to block my hands
    from going into his pockets. I advised him that he needed to keep his
    hands up in the air. As I searched him, started to go once again to
    search the pockets, he did this (indicating) again where he put his hands
    down and tried to block my hands. This happened approximately five
    times at which time I became kind of concerned for Investigator Joecken
    and myself's safety.
    Suppression Hearing Tr. p. 11.
    At the suppression hearing, Sanders testified he felt compelled to submit to the
    search and brought his arms down to keep his pants from being pulled down as
    Abodeely reached into the pockets. While he repeatedly blocked Abodeely's hands,
    he did not verbally withdraw consent to search.
    Abodeely testified Sanders's refusal to cooperate with the search, and concerns
    about officer safety, led him to handcuff him. Id. at 21 ("[B]ecause of his
    uncooperative state and for my own safety, I then handcuffed him."). Notably,
    however, Abodeely admitted he likely patted Sanders down before actually reaching
    into his pockets and discovered nothing to indicate he was armed.
    Q:     Did you ever actually pat him down, or did you just reach
    and grab?
    A:     I'm not for sure on that. I would guess I patted him down,
    because I don't just put my hands in the pockets because
    I'm afraid there may be a needle or weapon of some sort.
    Q:     But there's nothing in your report to indicate that you ever
    felt anything that was consistent with a weapon in his
    pocket.
    A:     No.
    -3-
    Id. at 23.
    After Sanders was handcuffed, Abodeely was able to complete the search
    which led to the discovery of eight small rocks of crack cocaine.
    Sanders was indicted on one count of possession with intent to distribute crack
    cocaine in violation of 
    21 U.S.C. §§ 841
    (a)(1), 841(b)(1)(C) and 851. He moved to
    suppress the crack cocaine discovered in the search of his person, arguing he did not
    give consent. Alternatively, he also argued he withdrew his consent as evidenced by
    his repeated attempts to block Abodeely's hands from searching his pants pocket. The
    district court rejected Sanders's arguments holding he gave consent for the officers
    to enter the hotel room and to search his person. The court further held his actions
    did not communicate an intent to withdraw his consent.
    Additionally, at sentencing, Sanders objected to the district court's use of the
    United States Sentencing Guidelines, arguing they were unconstitutional. In
    response, the district court imposed alternative sentences of 210 months under the
    Guidelines and 300 months in the event the Guidelines were held unconstitutional.
    On appeal, Sanders argues the district court erred in refusing to suppress the
    drug evidence discovered in the search of his person, and the district court's sentence
    was improper because the Guidelines are unconstitutional.
    II
    We review the district court's conclusions of law regarding a motion to
    suppress de novo and its fact findings for clear error. United States v. Booker, 
    269 F.3d 930
    , 931 (8th Cir. 2001). We will affirm the district court's denial of the motion
    to suppress "unless it is not supported by substantial evidence on the record; it
    reflects an erroneous view of the applicable law; or upon review of the entire record,
    -4-
    [we] are left with the definite and firm conviction that a mistake has been made." 
    Id.
    (quoting United States v. Lowe, 
    50 F.3d 604
    , 607 (8th Cir. 1995)).
    A.     Consent to Search
    "Under the fourth and fourteenth amendments, searches conducted without a
    warrant issued upon probable cause are presumptively unreasonable, subject to a few
    specifically established exceptions." United States v. Cedano-Medina, 
    366 F.3d 682
    ,
    684 (8th Cir. 2004). Consent to search is one such exception, and "[a] warrantless
    search is valid if conducted pursuant to the knowing and voluntary consent of the
    person subject to a search." United States v. Brown, 
    763 F.2d 984
    , 987 (8th Cir.
    1985). Whether consent is voluntarily given is a question of fact, Schneckloth v.
    Bustamonte, 
    412 U.S. 218
    , 248-49 (1973), and on appeal, we review the district
    court's fact findings for clear error. United States v. Lee, 
    356 F.3d 831
    , 834 (8th Cir.
    2003).
    The test applied to determine if consent is free and voluntary is whether, in
    light of the totality of the circumstances, consent was given without coercion, express
    or implied. Bustamonte, 
    412 U.S. at 227
    ; Laing v. United States, 
    891 F.2d 683
    , 686
    (8th Cir. 1989). The government bears the burden of showing consent was freely and
    voluntary given and not a result of duress or coercion, Laing, 891 F.2d at 686, and the
    burden cannot be discharged by showing mere acquiescence to a claim of lawful
    authority. Bumper v. North Carolina, 
    391 U.S. 543
    , 548-49 (1968). "Rather, the
    government must show that a reasonable person would have believed that the subject
    of a search gave consent that was the product of an essentially free and unconstrained
    choice, and that the subject comprehended the choice that he or she was making."
    Cedano-Medina, 
    366 F.3d at 684
     (internal citations and quotations omitted).
    Factors we consider when determining if consent was freely and voluntarily
    given, as set forth in United States v. Chaidez, 
    906 F.2d 377
    , 381 (8th Cir. 1990),
    -5-
    include 1) age, 2) general intelligence and education, 3) whether the individual was
    under the influence of drugs or alcohol, 4) whether he was informed of his Miranda1
    rights, and 5) whether he had experienced prior arrests and was thus aware of the
    protections the legal system affords suspected criminals.
    Additionally, the environment in which the alleged consent was secured is also
    relevant. Accordingly, we consider 1) the length of time one was detained,
    2) whether the police threatened, physically intimidated, or punished the suspect,
    3) whether the police made promises or misrepresentations, 4) whether the suspect
    was in custody or under arrest when the consent was given, 5) whether the consent
    occurred in a public or a secluded place, and 6) whether the suspect stood by silently
    as the search occurred. United States v. Smith, 
    260 F.3d 922
    , 924 (8th Cir. 2001).
    We also consider "whether the defendant's contemporaneous reaction to the search
    was consistent with consent." United States v. Jones, 
    254 F.3d 692
    , 696 (8th Cir.
    2001). "The factors should not be applied mechanically, and no single factor is
    dispositive or controlling." United States v. Bradley, 
    234 F.3d 363
    , 366 (8th Cir.
    2000) (internal citation omitted).
    The district court found Sanders invited the officers into the hotel room and
    consented to the search of his person and hotel room. There is evidence in the record
    to support these fact findings and they are not clearly erroneous. Further, applying
    the law of consensual searches to the facts as found by the district court, we conclude
    there is nothing to suggest he was coerced into giving consent. He had considerable
    experience with law enforcement, was not intoxicated, and the officers' actions were
    not unduly threatening or intimidating. Thus, we conclude his consent to search his
    person was voluntarily given.
    1
    Miranda v. Arizona, 
    384 U.S. 436
    , 473 (1966).
    -6-
    B.     Withdrawal of Consent
    Sanders next argues the fruits of the search should nonetheless be suppressed
    because he withdrew his consent before the drugs were discovered. We agree.
    Once given, consent to search may be withdrawn: "Withdrawal of consent need
    not be effectuated through particular 'magic words,' but an intent to withdraw consent
    must be made by unequivocal act or statement." United States v. Gray, 
    369 F.3d 1024
    , 1026 (8th Cir. 2004) (citation omitted). If equivocal, a defendant's attempt to
    withdraw consent is ineffective and police may reasonably continue their search
    pursuant to the initial grant of authority. 
    Id.
     (finding protests about the length of time
    the search was taking without any specific request to leave did not under the
    circumstances amount to an unequivocal withdrawal of consent). "The standard for
    measuring the scope of a suspect's consent under the Fourth Amendment is that of
    'objective' reasonableness – what would the typical reasonable person have
    understood by the exchange between the officer and the suspect?" Florida v. Jimeno,
    
    500 U.S. 248
    , 251 (1991). Accordingly, we must determine whether a reasonable
    person would have concluded Sanders's repeated attempts to thwart Abodeely's
    attempts to search his pockets amounted to a withdrawal of consent.
    "[C]onduct withdrawing consent must be an act clearly inconsistent with the
    apparent consent to search, an unambiguous statement challenging the officer's
    authority to conduct the search, or some combination of both." Burton v. United
    States, 
    657 A.2d 741
    , 746-47 (D.C. App. 1994) (footnotes omitted). For example, a
    defendant who twice grabbed a deputy's hand in a attempt to stop him from searching
    a pack of cigarettes was held to have withdrawn his earlier consent, and "it was
    improper for the officer to continue the search over the defendant's objections."
    Jimenez v. State, 
    643 So.2d 70
    , 72 (Fla. Dist. Ct. App. 1994). Similarly, in Lowery
    v. State, 
    894 So.2d 1032
    , 1034 (Fla. Dist. Ct. App. 2005), the court held a defendant
    withdrew his consent to search by "twice attempt[ing] to reach into his pockets at the
    -7-
    same time that the officer was attempting to search the pockets." Additionally, the
    court found it improper for the officer to order the defendant to stop interfering with
    the search because "[i]n a consensual search, an officer has no authority to command
    the person being searched to stop interfering with the search." Id.; see also United
    States v. Ibarra, 
    731 F. Supp. 1037
    , 1039 (D. Wyo. 1999) (noting closing and locking
    car trunk after a consensual search amounted to withdrawal of consent to further
    search of trunk), Cooper v. State, 
    480 So.2d 8
    , 11 (Ala. Crim. App. 1985) (locking
    plane doors after consensual search revoked consent for subsequent search of plane).
    Conversely, when a defendant's actions are ambiguous or equivocal courts
    refuse to find an effective withdrawal of consent. Thus, a defendant's act of merely
    lowering his hands as an officer searched his groin area was insufficient to
    demonstrate an unequivocal withdrawal of consent. State v. Mattison, 
    575 S.E.2d 852
    , 857 (S.C. Ct. App. 2003). Similarly, in Burton, the court declined to find the
    defendant withdrew consent simply by putting his hand in his pocket and turning
    toward the window, because he complied without comment upon being asked to
    remove his hand from his pocket. 
    657 A.2d at 748
    . Finally, in United States v. Jones,
    the court held twisting away slightly during a consensual pat-down search was
    insufficient to communicate to the officer an unequivocal intent to withdraw consent.
    No. 90-3001, 
    1990 WL 142342
    , at *2 (D.C. Cir. Oct. 1, 1990) (unpublished).
    Here, the district court found Sanders's actions did not amount to an
    unequivocal withdrawal of consent. In so holding, the district court noted the
    magistrate judge had relied upon his testimony indicating he was only trying to keep
    his pants from falling down when he repeatedly blocked Abodeely's hands. The
    district court, however, stated his subjective intent was irrelevant to whether a person
    would objectively believe his actions amounted to a withdrawal of consent. See
    Jimeno, 
    500 U.S. at 251
     (applying a reasonable person standard for determining the
    scope of consent). We agree the district court properly stated the applicable rule, but,
    because we are left with the definite and firm conviction a mistake has been made, we
    -8-
    hold the district court clearly erred in concluding Sanders did not unequivocally
    withdraw his consent.
    It is undisputed that at least five times Sanders moved his hands down and
    prevented Abodeely from searching his pockets. Because this was a consensual
    search, he had every right to withdraw or limit the scope of his consent by taking
    actions clearly designed to prevent Abodeely from searching further. His actions
    made it apparent he did not intend to permit Abodeely to search his pockets, and
    Abodeely exceeded his authority by repeatedly ordering him to comply with the
    search. Lowery, 894 So.2d at 1034. In the end, the only way Abodeely could
    complete the "consensual" search was to place Sanders in handcuffs. Based on these
    undisputed facts, we conclude the district court clearly erred when it held Sanders's
    actions, which so interfered with Abodeely's ability to search him he had to be
    handcuffed, communicated anything but a withdrawal of consent. Any objective
    observer watching this scenario would conclude he was not consenting to the search
    of his pockets. Stated another way, if a suspect has to be handcuffed to prevent
    interference with a search of his person, the search was not consensual.
    The district court suggests the reason Sanders was handcuffed had nothing to
    do with his lack of cooperation or the withdrawal of consent. Rather, the district
    court states "officers handcuffed Sanders . . . out of a concern for officer safety. The
    fact a subsequent event caused officers to handcuff Sanders does not void his earlier
    verbal consent." We disagree with the district court's reasoning. Even assuming the
    officers were justified in handcuffing Sanders because of officer safety, they were not
    justified in expanding the consensual search beyond the scope of his limited consent.
    As already noted, his actions clearly communicated to an objective observer he did
    not want Abodeely searching his pockets. Though officer safety would have justified
    a pat-down of Sanders's pockets to determine whether he had a weapon, "the sole
    justification for a pat-down search is for weapons, [and] only searches 'reasonably
    designed to discover concealed weapons' are permissible." United States v. Hanlon,
    -9-
    
    410 F.3d 926
    , 929 (8th Cir. 2005) (quoting United States v. Roggeman, 
    279 F.3d 573
    ,
    577 (8th Cir. 2002)). Here, the record contradicts any claim that Abodeely reasonably
    believed, after conducting a pat-down search, Sanders was armed. Accordingly,
    when "an officer seizes an item of contraband from an individual's person after
    having concluded that no weapons are present, the evidence will be suppressed." 
    Id.
    (citing Minnesota v. Dickerson 
    508 U.S. 366
    , 378 (1993)).
    The dissent, as did the district court, contends these facts would convince a
    reasonable observer Sanders's actions did not interfere with or prevent the search.
    Indeed, both argue Sanders's repeated interference actually demonstrates he
    cooperated with Abodeely's attempts to complete the search. We cannot countenance
    this clearly erroneous view of the evidence. The district court's finding that Sanders
    did not withdraw his consent, founded on an interpretation of the evidence which
    posits his repeated interference signaled cooperation, leads us to the unmistakable
    conclusion a mistake has been made. Accordingly, we are compelled to reverse.
    The dissent recognizes Abodeely testified Sanders repeatedly prevented him
    from completing the search by attempting to block his hands. It also, however, argues
    Sanders testified the only reason he dropped his hands was to keep his pants from
    being pulled down, and, unless Sanders or Abodeely testified he grabbed Abodeely's
    hands or put his own hands over his pockets, our decision rests on mere speculation.
    The dissent further contends the only evidence supporting our conclusion that
    Sanders's actions prevented the search "is Abodeely's speculation that Sanders 'tried
    to block my hands.'" Finally, the dissent argues our decision is unsound because
    "both Abodeely and Sanders testified that, without saying anything, Sanders simply
    lowered his arms an unspecified distance each time Abodeely reached into Sanders's
    pockets and caused his pants to pull downward."
    Abodeely did not testify Sanders simply lowered his arms. Instead, he stated
    Sanders repeatedly tried to block his hands from going into his pockets. Further,
    Abodeely never testified his attempts to search Sanders's pockets caused his pants to
    -10-
    pull downward. A careful reading of the transcript indicates Abodeely did not
    actually reach into Sanders's pockets until after he was in handcuffs. Nonetheless,
    this is not a foot-race between Abodeely's and Sanders's conflicting interpretations
    of what transpired. While their testimony is relevant to our inquiry, we are not called
    upon to simply accept one version and reject the other. Rather, cast as we are in the
    role of reasonable observer to these events, we must view the entire record through
    the critical eye of a reasonable observer. Jimeno, 
    500 U.S. at 251
    . Accordingly, we
    ask: "What would a reasonable observer conclude?"
    Our reasonable observer would have heard Sanders consent to the search of his
    room and person. The observer would have watched as Sanders raised his hands and
    permitted Abodeely, without interference, to search his upper body. As Abodeely
    then attempted to search Sanders's pants pockets, our reasonable observer would have
    seen Sanders's attitude change as he prevented the search by dropping his hands; only
    to be ordered to raise them again. Our observer would have watched as this scenario
    repeated itself again and again, and would have understood Sanders's actions
    prevented the search because Abodeely repeatedly ordered him to raise his hands and
    was only able to complete the search once Sanders was in handcuffs. This evidence
    is not speculative – it rests neither on Abodeely's nor Sanders's subjective
    understanding. Instead, it reflects what a reasonable observer to these events would
    have witnessed. To suggest such an observer could reasonably conclude Sanders had
    not clearly indicated he did not want Abodeely searching his pants pockets is a
    conclusion we cannot suffer.
    We also disagree with the dissent's contention that our decision cannot stand
    because there is no evidence suggesting Sanders grabbed Abodeely's hands or placed
    his hands over his pockets. As set forth above, the universe of conduct demonstrating
    withdrawal of consent is not so narrowly defined. We conclude Sanders clearly
    demonstrated his withdrawal of consent by repeatedly preventing Abodeely from
    searching his pants pockets – a finding fully supported by the record. Indeed, the
    undisputed evidence from the suppression hearing – as set forth earlier in this opinion
    -11-
    – conclusively establishes Sanders prevented Abodeely from completing the search
    at least five times. We also reject the dissent's suggestion that a reasonable observer
    to these events would have concluded Sanders's repeated interference with the search
    actually demonstrated an air of cooperation. The dissent argues: "Like the district
    court, what I find particularly dispositive in this case is Sanders's repeated
    cooperation with Abodeely's requests to raise his arms so that the search could
    continue." This conclusion is clearly erroneous because it ignores the reality of what
    transpired. What a reasonable observer would have seen and heard was Abodeely
    repeatedly ordering Sanders to cooperate, followed by Sanders's repeated failure to
    cooperate. Abodeely testified: "I kept asking him to raise his hands in the air, and
    then because of his uncooperative state and for my own safety, I then handcuffed
    him." Suppression Hearing Tr. p. 21 (emphasis supplied). Based on this evidence,
    a reasonable observed would have concluded the search only continued after Sanders
    was in handcuffs and could no longer interfere.
    In arguing against today's holding, the dissent cites State v. Watson, 
    864 A.2d 1095
     (N.H. 2004), United States v. Brown, 
    884 F.2d 1309
     (9th Cir. 1989), and
    Mattison, 
    575 S.E.2d 852
    . None of these cases, however, involved suspects whose
    actions prevented police from conducting a search after consent was given. In
    Watson the defendant consented, albeit reluctantly, to the search of his hotel room but
    did nothing to interfere with the search. 864 A.2d at 541-42. Similarly, in Brown the
    court held a suspect's mere reluctance to admit he was carrying the keys to his
    suitcases did not vitiate his earlier consent. 
    884 F.2d at 1311-12
    . Finally, in Mattison
    the defendant repeatedly moved his hands to his groin area during a pat-down search
    but there is nothing in the record showing those hand movements in any way
    prevented or interfered with the officer's ability to conduct the search. 
    575 S.E.2d at 586-87
    . Rather, the officer testified Mattison "[w]as very cooperative." 
    Id. at 854
    .
    Here, Sanders's actions, which prevented Abodeely from conducting the search, were
    "clearly inconsistent with the apparent consent to search." Burton, 
    657 A.2d at
    746-
    47. Because we "are left with the definite and firm conviction that a mistake has been
    -12-
    made," Lowe, 
    50 F.3d at 607
    , we hold the district court clearly erred in concluding
    Sanders did not withdraw his consent to search.
    III
    The order and judgment of the district court denying Sanders's motion to
    suppress evidence seized during the search of his person is reversed. Because we
    reverse the district court's denial of the suppression motion, we need not address
    Sanders's remaining claim.
    GRUENDER, Circuit Judge, dissenting.
    I agree with the Court that the district court did not clearly err by finding that
    Craig Sanders voluntarily consented to a search of his motel room and of his person.
    I respectfully dissent, however, because I do not agree that the district court clearly
    erred by finding that Sanders did not unequivocally withdraw the voluntary consent
    to the search of his person. I believe that in reaching its conclusion, the Court has
    misapplied the appropriate standard of review by not deferring to the district court’s
    eminently reasonable view of the evidence. The Court’s conclusion conflicts with
    our well-established case law and the weight of Fourth Amendment jurisprudence
    from other jurisdictions.
    I
    The proper disposition of a case on appeal depends, in the first instance, on the
    appropriate appellate standard of review. As with the question of whether a
    defendant voluntarily consented to a search, Schneckloth v. Bustamonte, 
    412 U.S. 218
    , 248-49 (1973), the question of whether a defendant withdrew that consent is a
    factual determination. In this case, both the Court and I agree that the clearly
    erroneous standard of review applies to the district court’s factual finding that
    Sanders did not unequivocally withdraw his consent to the search of his person.
    -13-
    Supra at 9; see also United States v. Gray, 
    369 F.3d 1024
    , 1026 (8th Cir. 2004) (citing
    United States v. Brown, 
    345 F.3d 574
    , 578 (8th Cir. 2003)). I disagree, however,
    with the Court’s application of the clearly-erroneous standard of review.
    “A finding is ‘clearly erroneous’ when although there is evidence to support
    it, the reviewing court on the entire evidence is left with the definite and firm
    conviction that a mistake has been committed.” United States v. Sanders, 
    341 F.3d 809
    , 818 (8th Cir. 2003) (quoting United States v. United States Gypsum Co., 
    333 U.S. 364
    , 395 (1948)). Stated another way, “[t]o be clearly erroneous, a decision
    must strike us as more than just maybe or probably wrong; it must . . . strike us as
    wrong with the force of a five-week-old, unrefrigerated dead fish.” In re Papio Keno
    Club, Inc., 
    262 F.3d 725
    , 729 (8th Cir. 2001) (quoting Parts & Elec. Motors, Inc. v.
    Sterling Elec., Inc., 
    866 F.2d 228
    , 233 (7th Cir. 1988)). The district court’s findings
    of fact, therefore, cannot be clearly erroneous where there are two permissible views
    of the evidence. Anderson v. City of Bessemer City, 
    470 U.S. 564
    , 574 (1985). “If
    the district court’s account of the evidence is plausible in light of the record viewed
    in its entirety, the court of appeals may not reverse it even though convinced that had
    it been sitting as the trier of fact, it would have weighed the evidence differently.”
    United States v. Tucker, 
    243 F.3d 499
    , 506 (8th Cir. 2001) (quoting Bessemer City,
    
    470 U.S. at 573-74
    ).
    Therefore, in order to hold that Sanders unequivocally withdrew his consent,
    the Court must conclude that the district court’s view of the evidence was
    unreasonable and impermissible. Instead, the Court refuses to acknowledge the
    reasonable conclusion of the district court. As a result, despite conceding the
    applicability of the more deferential clear-error standard of review, the Court
    effectively engages in a de novo review of the district court’s factual conclusion. In
    my view, the district court’s conclusion is supported by the evidence in the record and
    should be granted the deference afforded a fact-finder under the clearly erroneous
    standard.
    -14-
    II
    At the suppression hearing, Investigator Ryan Abodeely testified that each time
    he asked Sanders to raise his arms, Sanders “tried to block” the search by lowering
    his arms. Sanders, however, did not testify that he was trying to prevent the search
    from proceeding but rather testified that he was only reflexively trying to stop his
    pants from being pulled downward.2 Although Sanders’s subjective intent in
    reaching toward his waistband is clear (and clearly contrary to the conclusion reached
    by the Court today), his subjective intent does not figure into my analysis. The
    district court correctly applied an objective standard for determining whether consent
    was unequivocally withdrawn. See United States v. Gray, 
    369 F.3d 1024
    , 1026 (8th
    Cir. 2004) (requiring unequivocal act or statement to effectively withdraw voluntary
    consent to a search). In other words, the district court properly determined the facts
    surrounding the search based on what a reasonable person would have understood by
    2
    Sanders testified on direct examination at the suppression hearing that the only
    reason he lowered his arms was to pull his pants up. During cross-examination, he
    elaborated on why he lowered his arms:
    GOVERNMENT:                               And when you put your hands down,
    the only thing you were trying to do
    was pull your pants up?
    SANDERS:                                  Yeah, ‘cause my pants – ‘cause when
    you go in my pocket, the rim come
    down like this (indicating), and I’m
    like, Whoa, what’s up.
    THE COURT:                                What came down?
    SANDERS:                                  The hands like this (indicating). They
    were in my pocket, hand, and I’m
    like, Whoa, what’s up? That’s all. It
    was just a reflex. That’s all.
    -15-
    the exchange between Sanders and Abodeely. See Florida v. Jimeno, 
    500 U.S. 248
    ,
    251 (1991). Neither the Court nor I believe that the district court’s conclusion that
    consent was not unequivocally withdrawn is based on an incorrect application of the
    law.
    The Court has concluded that the only permissible view of the evidence is that
    when Sanders lowered his arms, he was attempting to prevent the search of his
    pockets. In fact, the only evidence supporting the Court’s factual conclusion that
    Sanders’s actions were clearly designed to prevent Abodeely from searching his
    pockets is Abodeely’s speculation that Sanders “tried to block my hands.” Supra at
    3 (emphasis added). Perhaps this would be the only permissible inference if either
    Abodeely or Sanders had testified that Sanders made some unequivocal gesture, such
    as grabbing Abodeely’s hands, putting his own hands over his pockets, or simply
    saying “stop.” Importantly, however, both Abodeely and Sanders testified that,
    without saying anything, Sanders simply lowered his arms an unspecified distance
    each time Abodeely reached into Sanders’s pockets and caused his pants to pull
    downward.3
    In determining whether Sanders unequivocally withdrew his consent to the
    search, it is important to focus on both Abodeely’s and Sanders’s descriptions of the
    events because this is the only evidence available to the reasonable observer. The
    reasonable observer does not know Sanders’s purpose in lowering his arms nor does
    3
    From the transcript of the suppression hearing, we know that Sanders
    reenacted his gesture for the benefit of the court. See supra n.2. Unfortunately,
    limited as we are to the written record, we are unable to discern the extent of
    Sanders’s gesture. This is why we “review the facts supporting the district court’s
    [suppression ruling] for clear error, mindful that ‘[w]hen applying this standard, we
    give deference to the fact finder, who had an opportunity to observe the demeanor and
    credibility of the witnesses.’” United States v. Hammons, 
    152 F.3d 1025
    , 1028 (8th
    Cir. 1998) (quoting United States v. Cunningham, 
    133 F.3d 1070
    , 1072 (8th Cir.
    1998)).
    -16-
    she know what Abodeely thinks Sanders’s purpose might be. Rather, the reasonable
    observer must rely on what she sees and hears.
    I submit that the district court’s conclusion that Sanders did not unequivocally
    withdraw his consent to search his person is quite reasonable. As the reasonable
    observer entered the motel room, she would have observed Sanders, his six-year-old
    grandson and a woman surrounded by evidence of recent drug use. The reasonable
    observer would not only have witnessed Sanders voluntarily consent to a search of
    his motel and his person but would also have seen him assisting the search of his
    person by standing and placing his hands in the air without any prompting from
    Abodeely. The reasonable observer would have noticed that as Abodeely reached
    into his pockets, Sanders’s waistband was pulled downward. She would have also
    observed Sanders lower his arms as his waistband was being pulled downward.4 The
    reasonable observer would have then watched as Abodeely stopped the search
    process and asked Sanders to keep his hands in the air before the search was resumed.
    This exchange would have occurred four or five times, and each time, the reasonable
    observer would have seen Sanders comply without hesitation or protest. After the
    final iteration of the exchange, the reasonable observer would have seen Abodeely
    place Sanders into handcuffs. She would have listened as Abodeely explained that
    Sanders was not under arrest but that he was being handcuffed only for the
    investigators’ safety. Even after being handcuffed, Sanders did not say anything that
    would have alerted the reasonable observer to a desire that the search be stopped.
    Finally, the reasonable observer would have watched as the search proceeded without
    incident until Abodeely discovered that Sanders had eight baggies of crack cocaine
    and $138 in cash in his pockets. Based on these observations, the district court was
    4
    As Sanders himself testified, it would be quite reasonable for our reasonable
    observer to conclude that Sanders reflexively lowered his arms in response to his
    pants being pulled downward. The Court’s assertion that Abodeely did not reach into
    Sanders’s pockets until after he was in handcuffs, supra at 11, is belied by the
    testimony of Sanders, as quoted supra n.2.
    -17-
    quite reasonable in reaching its conclusion that Sanders did not unequivocally
    withdraw consent.
    III
    “Withdrawal of consent need not be effectuated through particular ‘magic
    words,’ but an intent to withdraw consent must be made [known] by unequivocal act
    or statement.” Gray, 
    369 F.3d at 1026
    . Statements of impatience and protests to
    leave, such as “the length of the search [is] ‘ridiculous’” and “[we’re] ready to go
    now,” have been held insufficient to unequivocally withdraw consent. 
    Id. at 1026-27
    ;
    United States v. Ross, 
    263 F.3d 844
    , 845-46 (8th Cir. 2001) (holding that statements
    of impatience did not amount to withdrawal of consent). Further, courts have held
    that ambiguous actions that may be inconsistent with the progress of a search are not
    unequivocal acts withdrawing consent. See United States v. Wilmore, 
    57 Fed. Appx. 949
    , 953 (3d Cir. 2003) (unpublished) (taking a step or two backward in order to flee
    after the officer stated his intent to search the suspect’s person was not an
    unequivocal withdrawal of consent); United States v. Kubbo, 
    17 Fed. Appx. 543
     (9th
    Cir. 2001) (mem.) (removing the carpet out of the back of a vehicle and folding it
    over in a manner that indicated to the officers that something was hidden did not
    impliedly withdraw or narrow the scope of the defendant’s consent). Effective
    withdrawal of consent, therefore, requires an act or statement clearly and
    unequivocally contrary to the voluntary consent to a search. See Burton v. United
    States, 
    657 A.2d 741
    , 746-47 (D.C. App. 1994) (listing cases where courts have and
    have not found withdrawal of consent).
    The most generous interpretation of Sanders’s action is that lowering his arms
    somehow reflected his reluctance to allow the search to continue. However, “[m]ere
    reluctance to a continued search, once an explicit and unambiguous statement of
    consent has been provided, is not necessarily sufficient to imply a withdrawal [of]
    such consent.” Kubbo, 17 Fed. Appx. at 545. This is particularly true when the act
    allegedly withdrawing consent is not accompanied by any statement of protest. See
    -18-
    Burton, 
    657 A.2d at
    746 n.11 (discussing situations where actions clearly inconsistent
    with consent are not accompanied by statements); cf. Metcalf v. Long, 
    615 F. Supp. 1108
    , 1117 (D. Del. 1985) (finding consent to search was withdrawn by the suspect’s
    refusal to provide the officers with the keys to his locked residence and his statement,
    “If you want to go in there, kick the door in”). For example, voluntary consent to
    search was not withdrawn where a suspect hesitated before silently acceding to the
    officer’s request to continue the search. Baxter v. State, 
    77 P.3d 19
    , 25 (Alaska App.
    2003). In this case, Sanders knowingly and voluntarily consented to a search of his
    motel room and of his person. During the search of his person, Sanders did not
    attempt to move away from Abodeely, Nease v. State, 
    484 So. 2d 67
    , 69 (Fla. Dist.
    Ct. App. 1986), did not grab Abodeely’s hands in an attempt to stop the search,
    Jimenez v. State, 
    643 So. 2d 70
    , 72 (Fla. Dist. Ct. App. 1994), and did not reach into
    his pockets to purposely obstruct the search, Lowery v. State, 
    894 So. 2d 1032
    , 1034
    (Fla. Dist. Ct. App. 2005).
    A suspect’s actions in relation to a search are particularly ambiguous when
    accompanied by continued compliance with an officer’s requests. For example, in
    State v. Mattison, 
    575 S.E.2d 852
     (S.C. App. 2003), a suspect who dropped his arms
    to his waist during an attempted search of the area around his waistband did not
    effectively withdraw his consent because he repeatedly complied with the officer’s
    request to put his hands back on the hood of a car. 
    Id. at 857
     (“We find Mattison’s
    act of lowering his hands falls far short of an unequivocal act or statement of
    withdrawal, something found in most withdrawal of consent cases.”). As the
    arresting officer in Mattison testified,
    When I got around to the waistband area, [Mattison] kept, in a nervous
    manner, reaching his hands back down, which led [to] more suspicion
    that there might be something down there. He kept putting them down.
    I told him several times, ‘Keep your hands on the hood or on the trunk.’
    He complied. He was very cooperative.
    -19-
    
    Id. at 854
    . Similarly, the act of placing his hand in his pocket and turning away from
    the officer during the course of a consensual search of his person was ambiguous in
    light of a suspect’s immediate compliance with a request to remove his hand from his
    pocket. Burton, 
    657 A.2d at 748
    . Nowhere in the record is there any support for
    Sanders’s assertion on appeal that he “repeatedly pushed [Abodeely’s] hand away.”
    Instead, the record clearly shows that Sanders lowered his arms some distance
    approximately five times, that this caused Abodeely to ask him to raise his arms, and
    that Sanders did so without comment or hesitation. Like the district court, what I find
    particularly dispositive in this case is Sanders’s repeated cooperation with Abodeely’s
    requests to raise his arms so that the search could continue.
    Of course, once consent is given, it can be limited during the course of the
    search. See United States v. Ho, 
    94 F.3d 932
    , 936 n.5 (5th Cir. 1996). While an
    articulated objection to the continuing search is not necessary, the failure to object
    verbally bears on a court’s consideration of whether the act allegedly withdrawing or
    limiting consent was unequivocal and unambiguous. Cf. United States v. Espinosa,
    
    782 F.2d 888
    , 892 (10th Cir. 1986) (“Failure to object to the continuation of the
    search under these circumstances may be considered an indication that the search was
    within the scope of the consent.”); McNair v. Commonwealth, 
    521 S.E.2d 303
    , 307
    (Va. App. 1999) (holding that a suspect’s failure to withdraw consent to search for
    “criminal activity” in his home included the top floor because he did not withdraw his
    consent to search when he observed the officer go upstairs). Certainly by the fifth
    time he lowered his arms, Sanders was aware of the scope of the investigator’s search.
    Yet during the course of the entire search, Sanders never articulated anything
    approximating an objection, and nothing in the record suggests his inability to do so.
    The Court relies on the Terry-stop case of United States v. Hanlon for the
    proposition that when “an officer seizes an item of contraband from an individual’s
    person after having concluded that no weapons are present, the evidence will be
    suppressed.” 
    401 F.3d 926
    , 929 (8th Cir. 2005) (affirming the district court’s
    conclusion that the officer had reasonable suspicion to subject the defendant to a pat-
    -20-
    down search for weapons following a traffic stop). However, we need only reach our
    Terry-stop jurisprudence if Sanders unequivocally withdrew his consent or if his
    consent was effectively withdrawn when Abodeely placed him in restraints. With
    respect to the former, as discussed above, the district court did not clearly err. With
    respect to the latter, placing a suspect in custody as a safety precaution during the
    course of a consensual search does not, by itself, operate to end a suspect’s consent.
    See State v. Watson, 
    864 A.2d 1095
    , 1099 (N.H. 2004) (contrasting a valid search
    where a suspect is restrained after giving consent with an invalid search where a
    suspect gives consent after being restrained). For example, in Mattison, the officer
    properly placed the suspect in handcuffs as a safety precaution after the suspect
    impeded a consensual search by repeatedly lowering his arms and then returning them
    to the hood of a vehicle upon request. 
    575 S.E.2d at 854
    . Similarly, the Ninth Circuit
    upheld a consensual search where airport drug investigators placed a suspect in
    handcuffs while they searched his luggage. United States v. Brown, 
    884 F.2d 1309
    ,
    1310-11 (9th Cir. 1989).
    Sanders’s erratic behavior as Abodeely was about to discover the contraband
    indicated that safety precautions might be necessary. After placing Sanders in
    handcuffs, Abodeely explained to Sanders that he was not under arrest but was placed
    in restraints as a safety precaution. Sanders then complied with Abodeely’s request,
    thereby allowing the search to continue. See United States v. Hurst, 
    228 F.3d 751
    ,
    758 n.3 (6th Cir. 2000) (resisting handcuffs and attempting to flee from the scene was
    too ambiguous to imply unequivocal withdrawal of consent). At no point, either
    before or after being placed in handcuffs, did Sanders state that he wanted to
    withdraw his consent or limit the scope of the search. Indeed, based on the complete
    record, a reasonable observer could easily infer that Abodeely was momentarily
    prevented from continuing the search only by his desire to maintain control over the
    situation and to ensure the safety of all parties.
    -21-
    IV
    To overturn the district court, we must be immediately struck and firmly
    convinced of the district court’s clear error in failing to find that the act of lowering
    his arms, without anything more, constitutes an unambiguous and unequivocal
    withdrawal of consent. The district court found that Sanders did not unequivocally
    withdraw consent. After thoroughly reviewing all the evidence, I do not believe that
    the district court’s finding is based on an impermissible view of the evidence.
    Tucker, 
    243 F.3d at 506
     (recognizing that the Court may not reverse the district
    court’s choice from two permissible views of the evidence). I grant that this case
    might be close for a fact-finder, but close calls are not appropriate for finding clear
    error. See United States v. Jones, 
    254 F.3d 692
    , 695 (8th Cir. 2001) (affirming the
    district court’s finding that the defendant consented to a search by simply lowering
    his arms even though the Court would have reached a different conclusion if it were
    the finder of fact). Based on all the evidence adduced at the suppression hearing and
    the weight of Fourth Amendment case law, I would hold that the district court’s
    finding that Sanders did not unequivocally withdraw consent is not clearly erroneous.
    For these reasons, I would affirm the district court’s denial of Sanders’s motion
    to suppress evidence. Accordingly, I respectfully dissent.
    ______________________________
    -22-