United States v. Barnes

United States Court of Appeals
For the First Circuit

No. 06-2129

UNITED STATES OF AMERICA,

Appellant,

v.

KENNY BARNES,

Defendant, Appellee.

APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF RHODE ISLAND

[Hon. Ernest C. Torres, U.S. District Judge]

Before

Torruella, Circuit Judge,
John R. Gibson,* Senior Circuit Judge,
and Lipez, Circuit Judge.

Donald C. Lockhart, Assistant United States Attorney, with
whom Robert Clark Corrente, United States Attorney, and Zechariah
Chaffee, Assistant United States Attorney, were on brief, for
appellant.
Judith H. Mizner, Assistant Federal Public Defender, Federal
Defender Office, District of Massachusetts, for appellee.

October 29, 2007

*
Of the Eighth Circuit, sitting by designation.
 TORRUELLA, Circuit Judge. On June 8, 2006, the United

States District Court for the District of Rhode Island suppressed

34.79 grams of cocaine base seized from defendant Kenny Barnes

pursuant to what the court deemed an illegal body cavity search.

United States v. Barnes, 443 F. Supp. 2d 248 (D.R.I. 2006). The

Government now appeals the suppression ruling. At issue in this

interlocutory appeal is whether the police officers conducting the

cavity search had the requisite reasonable suspicion. After

careful consideration, we vacate the order and remand for further

proceedings consistent with this opinion.

I. Facts

On August 27, 2005, Barnes was sitting in the driver's

seat of his illegally parked car. Police officer George McMann of

the Woonsocket, Rhode Island Police Department ran the car's

license plate number through the National Crime Information Center

database on the laptop computer in his patrol car and found that

Barnes's driver's license had been suspended. McMann approached

the car and requested Barnes's license. Barnes presented documents

that purportedly showed that his license had been reinstated.

McMann stepped away from the car to review the documents.

Finding the documents lacking, McMann, accompanied by

Lieutenant John Picard and Officer Cote, who had subsequently

arrived on the scene, patted Barnes down for weapons. Finding

none, they removed Barnes to McMann's patrol car. Officers McMann

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and Cote recognized Barnes as the victim of a shooting that had

occurred approximately one month earlier.1

In the course of conducting an inventory search of

Barnes's car, as is customary before a car is impounded, the

officers smelled a strong odor of marijuana in the vehicle and

found remnants of a marijuana cigarette, including flakes of what

they suspected to be marijuana, in the car's front middle console.

The officers arrested Barnes, and searched the trunk of the

vehicle, finding a large bag of marijuana, a smaller bag of

marijuana, and a digital scale. Barnes was also found to be

carrying two cellular phones and $685 in cash. The officers then

radioed their station that they were bringing Barnes in, and drove

to the station.

Once at the station, McMann, accompanied by an Officer

Cahill, strip searched Barnes in a shower area designated as the

station's strip search facility.2 At McMann's instruction, Barnes

removed his clothing and lowered his underwear around his legs. No

contraband or weapons were found at that point. McMann then

1
McMann testified that after the shooting, he became aware of a
department report that Barnes was suspected of involvement in drug-
related activities.
2
It is undisputed "that the search of Barnes was conducted in a
reasonable manner and at a suitable location. The uncontroverted
evidence demonstrates that the officers acted very professionally
and that Barnes was searched in a private area of the police
station with only male officers present. Nor is there any
suggestion that the officers had any improper motive for performing
the search." Barnes, 443 F. Supp. 2d at 251.

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instructed Barnes to turn around, bend over, and spread his

buttocks so that the officers could see whether he had anything

concealed in his anal area. Barnes refused to do so. McMann

informed Barnes that it was station policy to conduct the body

cavity search as part of the strip search and that the examination

would only be visual.

At this point in the search, as McMann was explaining to

Barnes that he had to submit to the visual cavity search, Detective

Daniel Turgeon, a ten-year veteran of the narcotics unit, arrived

at the strip search area. Turgeon testified that he had heard that

Barnes was being brought in and that he wanted to ensure that

Barnes was strip searched. He had received a tip from some sources

that Barnes was reputed to deal in drugs and, specifically, known

to "cheek" drugs -- i.e., conceal drugs between his buttocks.3

When Turgeon arrived at the strip search -- before Barnes

submitted to the body cavity search -- he told McMann that "Mr.

Barnes needed to be strip searched."4 Turgeon also told Barnes

that the cavity search "was protocol with the Police Department"

and that he had to submit. After some discussion, Barnes reached

3
Turgeon did not identify the informants or testify to any facts
supporting their reliability.
4
It is the policy of the Woonsocket Police Department that when
conducting strip searches, "[p]risoners will be required to bend
over and spread the rectum to provide a clear view of the area."
We therefore consider Turgeon's instruction to strip search Barnes
an order to also conduct a visual body cavity search.

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behind his back and removed a bag containing cocaine base from

between his buttocks. He then submitted to a visual cavity search,

which uncovered no further drugs.5

Before the district court, McMann testified that he

thought a strip search of Barnes, and implicitly a visual body

cavity search, was warranted because (1) he suspected that Barnes

was a drug dealer, (2) marijuana was found in the car, (3) Barnes

had time to conceal drugs on his body when McMann stepped away from

Barnes's car to inspect Barnes's papers, and (4) he knew that some

drug dealers concealed drugs between their buttocks. He conceded

that he did not have any specific information as to where Barnes

kept drugs on his person.

The district court first held that the potential for

Barnes to be carrying concealed drugs or a weapon on his person

"clearly justified" McMann's decision to conduct a strip search.

Barnes, 443 F. Supp. 2d at 253. The court went on, however, to

determine that McMann conducted the visual body cavity search

without reasonable suspicion. While recognizing that Turgeon had

"information that Barnes was reputed to 'cheek' drugs," the court

determined that the knowledge could not be imputed to McCann

because it "was not communicated to Officer McMann before the

5
The Government conceded that although the drugs were not
produced as the direct result of a visual body cavity search, there
was a "strong likelihood of that search impelled Barnes to
surrender his drugs."

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search was conducted." Id. McCann's knowledge, alone, was an

insufficient basis to support a reasonable suspicion that Barnes

had drugs concealed between his buttocks. Id. Specifically, the

court opined that "it paints with too broad a brush to say that

every person arrested on a drug charge automatically is subject not

only to a strip search but also to a visual body cavity search[;]

. . . more individualized suspicion . . . is required to extend the

search to bodily cavities." Id. at 253-54.

II. Discussion

In an appeal from a suppression order, we review the

district court's legal conclusions de novo. See Ornelas v. United

States, 517 U.S. 690, 699 (1996). Subsidiary factual findings are

reviewed for clear error, "giv[ing] due weight to inferences drawn

from those facts by resident judges and local law enforcement

officers." Id. "A clear error exists only if, after considering

all the evidence, we are left with a definite and firm conviction

that a mistake has been made." United States v. McCarthy, 77 F.3d

522, 529 (1st Cir. 1996). Clear error does not exist if "any

reasonable view of the evidence supports the decision." Id.

"[T]he reasonable suspicion standard governs strip and

visual body cavity searches in the arrestee context . . . ." Swain

v. Spinney, 117 F.3d 1, 7 (1st Cir. 1997). The suspicion must be

specific to the individual being searched. Roberts v. Rhode

Island, 239 F.3d 107, 110 (1st Cir. 2001) ("[O]fficers [must] have

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a reasonable suspicion that a particular detainee harbors

contraband prior to conducting a . . . visual body cavity

search."). Moreover, in evaluating whether the suspicion was

reasonable, we "look at the totality of the circumstances of each

case to see whether the detaining officer ha[d] a particularized

and objective basis for suspecting legal wrongdoing." United

States v. Arvizu, 534 U.S. 266, 273 (2002)(internal quotation marks

omitted); United States v. Monteiro, 447 F.3d 39, 43 (1st Cir.

2006) (grounding reasonable suspicion in "specific and articulable

facts"). Officers may "draw on their own experience and

specialized training to make inferences from and deductions about

the cumulative information available to them," but a "mere hunch"

does not rise to reasonable suspicion. Arvizu, 534 U.S. at 273-74.

We will not disturb the district court's determination

that McMann, standing alone, did not have reasonable suspicion to

conduct a visual body cavity search of Barnes. The initial strip

search for contraband and weapons was clearly justified given

Barnes's arrest for a drug trafficking crime. See, e.g., Burns v.

Loranger, 907 F.2d 233, 238-39 (1st Cir. 1990). However, a visual

body cavity search involves a greater intrusion into personal

privacy. See, e.g., Blackburn v. Snow, 771 F.2d 556, 561 n.3 (1st

Cir. 1985) (distinguishing between strip searches and various types

of body cavity searches). Accordingly, prior to conducting a

visual body cavity search, we require a more particularized

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suspicion that contraband is concealed. See Swain, 117 F.3d at 7

(requiring reasonable suspicion that the arrestee is concealing

contraband or weapons). The evidence before McMann -- that Barnes

was a suspected drug dealer in possession of narcotics and that

some drug dealers conceal drugs between their buttocks –- did not

endow him with an individualized suspicion that Barnes was

"cheeking" drugs.

A visual body cavity search is not necessarily invalid

because the knowledge held by the individual officer conducting the

search is insufficient to support reasonable suspicion. We have

recognized that reasonable suspicion or even probable cause can be

established by the "collective knowledge" or "pooled knowledge"

principle. See, e.g., United States v. Paradis, 802 F.2d 553, 557

(1st Cir. 1986) (finding probable cause for arrest on the basis of

collective knowledge) (internal citations omitted); United States

v. Pardue, 385 F.3d 101, 106-07 (1st Cir. 2004), cert. denied, 543

U.S. 1169 (2005). Accordingly, the "focus is upon the collective

knowledge possessed by, and the aggregate information available to,

all the officers involved in the investigation." United States v.

Fiasconaro, 315 F.3d 28, 36 (1st Cir. 2002) (quoting United States

v. Winchenbach, 197 F.3d 548, 555 (1st Cir. 1999)). Specifically,

reasonable suspicion can be imputed to the officer conducting a

search if he acts in accordance with the direction of another

officer who has reasonable suspicion. Burns, 907 F.2d at 236 n.7;

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see also United States v. Taylor, 162 F.3d 12, 18 n.2 (1st Cir.

1998) (finding that information regarding an informant's

reliability can be imputed between officers "cooperating in an

investigation" (quoting United States v. Meade, 110 F.3d 190, 193

(1st Cir. 1997))). Likewise, in this case, Turgeon's statement to

McMann that "Mr. Barnes needed to be strip searched" is sufficient

to impute Turgeon's knowledge to McMann. Thus, the district court

erred in failing to consider the knowledge held by Turgeon in

evaluating McMann's subsequent order for Barnes to submit to the

visual body cavity search.

Admittedly, Turgeon's statement to McMann came after

McMann had (without reasonable suspicion) ordered Barnes to turn

around, bend over, and spread his buttocks. Barnes, however,

refused McMann's original order, and did not comply until after

Turgeon had ordered him to submit to the visual body cavity search

and McMann had reiterated his own order, following Turgeon's

indication that the search was necessary. The illegality of

McMann's original order only taints Turgeon's and McMann's

subsequent orders if the challenged evidence "has been come at by

exploitation of that illegality." Wong Sun v. United States, 371

U.S. 471, 488 (1963); see also Segura v. United States, 468 U.S.

796, 804 (1984). We think it clear that the narcotics were not

discovered through the exploitation of McMann's illegal order.

Indeed, Barnes refused to comply with McMann's original order. See

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Segura, 468 U.S. at 815 ("[E]vidence will not be excluded as

'fruit' [of an illegal search] unless the illegal[] [search] is at

least the 'but for' cause of the discovery of the evidence."). The

narcotics were only discovered after Barnes chose to cooperate with

Turgeon's and McMann's subsequent orders.6

The next question is whether Turgeon's knowledge was

sufficient to endow him with the requisite reasonable suspicion to

order a body cavity search. Although the district court determined

that Turgeon had the necessary individualized knowledge that Barnes

was reputed to conceal drugs between his buttocks, it did not

explicitly discuss the merits of his information. See Barnes, 443

F. Supp. 2d at 253. The court noted only that Turgeon had such

information. Id. On appeal, the government makes the argument

that there was reasonable suspicion based solely on the information

6
The district court properly held that although Barnes produced
the drugs himself, "it is clear that he did so only because he
recognized that, otherwise, [the search] would be performed."
Barnes, 443 F. Supp. 2d at 253. Thus the issue is whether there
was justification for such a search. To preserve his Fourth
Amendment rights, Barnes was not required, after initially
objecting to inspection, to continue to resist when confronted by
the officials claiming valid authority. See Schneckloth v.
Bustamonte, 412 U.S. 218, 233 (1973) ("[I]f under all the
circumstances it has appeared that the consent was not given
voluntarily –- that it was coerced by threats or force, or granted
only in submission to a claim of lawful authority -- then we have
found the consent invalid and the search unreasonable.") (citing
Bumper v. North Carolina, 391 U.S. 543, 548-49 (1968)); United
States v. Pérez-Montañez, 202 F.3d 434, 438 (1st Cir. 2000)
(requiring "more than mere acquiescence in the face of an unfounded
claim of present lawful authority").

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known to Turgeon. We cannot agree with the government on the basis

of this record.

Reasonable suspicion can be based upon information from

an informant if the tip bears sufficient "indicia of reliability."

Adams v. Williams, 407 U.S. 143, 147 (1972). In order to determine

reasonable suspicion, we must look to the "totality of the

circumstances" and examine whether Turgeon had a "particularized

and objective basis" for suspecting that Barnes was concealing

narcotics between his buttocks. See Arvizu, 534 U.S. at 273-74.

In making this evaluation, we are entitled to defer to an officer's

knowledge gathered through years of experience to gauge the

veracity of information. See id. Nonetheless, we are mindful that

when scrutinizing whether an informant's tip provides reasonable

suspicion, we must look to a number of factors, including the

officer's familiarity with the informant and the past reliability

of the informant, United States v. Montiero, 447 F.3d 39, 44 (1st

Cir. 2006) (citing Williams, 407 U.S. at 146). Indeed, our

"determination entails an examination of all the circumstances

bearing upon the tip itself and the tipster's veracity,

reliability, and basis of knowledge." United States v. Romain, 393

F.3d 63, 71 (1st Cir. 2004). Specifically, we have cautioned

against an officer "indiscriminately credit[ing] gossip or

innuendo." Id.

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 Here, Turgeon testified, generally, that his informants

had been reliable sources in the past. Turgeon's testimony that

the informants were known to the police does provide "some

assurance of reliability." United States v. Barnard, 299 F.3d 90,

93 (1st Cir. 2002) (noting that a known tipster "could be held

responsible if his assertions proved inaccurate or false").

Indeed, where informants are known, a lesser degree of

corroboration can be required. Compare Williams, 407 U.S. at 146-

47 (upholding a Terry stop on the basis of an uncorroborated tip

from a known and previously reliable informant), with Alabama v.

White, 496 U.S. 325, 331-32 (1990) (justifying a Terry stop with an

anonymous tip that was corroborated by details and predictive

information). However, the record must provide sufficient

information from which the court can ascertain and evaluate the

tipster's "veracity, reliability, and basis of knowledge." Romain,

393 F.3d at 71; see, e.g., Taylor, 162 F.3d at 18 (affirming the

district court's finding that an informant was reliable on the

basis of record evidence describing the officer's relationship with

and prior tips provided by the informant).

In this case, Turgeon's testimony is completely lacking

in any factual detail regarding the informant's tip. Although it

is undisputed that "[r]easonable suspicion is a less demanding

standard than probable cause . . . [and] can arise from information

that is less reliable than that required to show probable cause,"

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White, 496 U.S. at 330, the law requires more than naked assertions

of reliability to support reasonable suspicion. The hearing

transcript reveals that Turgeon simply responded in the affirmative

when briefly queried as to whether: (1) he had "information from

sources in Woonsocket as to Mr. Barnes," (2) they "have been

reliable sources," and (3) he had "received information as to where

on his person Mr. Barnes carried his drugs." Turgeon provided no

additional facts regarding his sources, the context in which the

information was conveyed, or the information solicited from them.

In the absence of such factual detail, we are unable to draw any

conclusions regarding the informant's basis of knowledge -- whether

the information was sufficient or credible to establish reasonable

suspicion. See Romain, 393 F.3d at 71.

III. Conclusion

Accordingly, we vacate the district court's order

suppressing the cocaine base seized from the defendant and remand

to determine the issue of Turgeon's reasonable suspicion. On

remand, the court may, within its discretion, take additional

evidence on the relevant factual issues as it appears that the

original suppression hearing was erroneously focused by the court

on the lack of express communication between the two officers.

See, e.g., United States v. Ventura, 85 F.3d 708, 712 (1st Cir.

1996) (permitting the district court to take additional evidence

where the court had previously applied an incorrect legal standard)

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(citing United States v. Streifel, 781 F.2d 953, 962 (1st Cir.

1986) (leaving it within the district court's discretion to reopen

and redetermine any issue covered in the appeal)).

Vacated and Remanded.

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