[PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT FILED
______________________ U.S. COURT OF APPEALS
ELEVENTH CIRCUIT
JUNE 26, 2007
No. 06-14666
THOMAS K. KAHN
______________________ CLERK
D.C. Docket No. 05-02191-CV-T-27-MAP
GORDON JOHNSTON,
Plaintiff-Appellee,
versus
TAMPA SPORTS AUTHORITY,
HENRY G. SAAVEDRA, in his Official
Capacity as Executive Director of the
Tampa Sports Authority,
Defendants-Appellants.
_____________________
Appeal from the United States District Court
for the Middle District of Florida
______________________
(June 26, 2007)
Before BIRCH and FAY, Circuit Judges and DUFFEY,* District Judge
PER CURIAM:
___________________________
*Honorable William S. Duffey, Jr., United States District Judge for the Northern District
of Georgia, sitting by designation.
The issue before the Court is whether the district court erred when it refused
to reconsider a state court’s order enjoining Appellant Tampa Sports Authority’s
(the “Authority”) policy of conducting pat-down searches of all ticket holders
seeking to attend Tampa Bay Buccaneers (the “Buccaneers”) games at the
Raymond James Stadium in Tampa, Florida (the “Stadium”). We conclude that
Johnston consented to the searches. The district court thus erred in not
reconsidering the preliminary injunction. Accordingly, we reverse and remand to
the district court for further proceedings consistent with this opinion.
I.BACKGROUND
In February 2005, the Authority instituted a policy requiring brief pat-down
searches of all persons attending Buccaneers football games. Johnston is a
Buccaneers season ticket subscriber who first became a season ticker holder in
2001, and he has renewed his season tickets each year since 2001. The season
ticket is, on its face, a revocable license for entry to the Stadium to attend
Buccaneers games. The Stadium is operated by the Authority, a Florida public
entity. The Authority grants the Buccaneers use of the Stadium pursuant to a
Stadium Agreement (the “Agreement”). The Agreement provides that the
Authority remains responsible for stadium security during Buccaneers games, and
obligates the Authority to “make proper rules and regulations for use of the
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Stadium . . . . [T]he content of such rules and regulations shall be reasonably
consistent with the rules and regulations enacted for other NFL stadia.”
On September 13, 2005, the Authority, at the urging of the National
Football League, (the “NFL”), considered enacting a policy to conduct limited
above-the-waist pat-down searches of all persons attending Buccaneers football
games. The NFL urged the pat-down policy to protect members of the public who
attend NFL games. The NFL concluded that NFL stadia are attractive terrorist
targets based on the publicity that would be generated by an attack at an NFL
game.1 The pat-down search policy focuses on the detection of improvised
explosive devices (“IED”) which might be carried on a person entering a stadium.
In February 2002 the NFL first implemented a policy requiring pat-down
searches for Super Bowl XXVII and other special events. The NFL later
expanded the policy to require pat-down searches at all football games. These pat-
down searches currently are conducted at all NFL events except at the Stadium,
where they have been enjoined.
The pat-down searches are conducted by outside screeners. The Authority
1
The NFL cites to the 2004 and 2005 suicide bombings in London and Madrid, threats
made to other sporting events, including a soccer venue in Spain, and knowledge that individuals
suspected to be tied to terrorist groups had downloaded information from the internet about NFL
stadia in St. Louis and Indianapolis. Although the FBI later deemed the threats and the
downloads not to present a threat to NFL stadia, these events formed the context in which the
NFL decided to request a pat-down policy be enacted at all NFL games.
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and the Buccaneers share the expense of the screeners and the Authority oversees
how the searches are conducted.2
Consistent with the policy urged by the NFL, the pat-down searches at the
Stadium focus on the detection of IEDs. At each admission gate, screeners ask
people entering the Stadium to hold their arms out to their side, palms up.
Screeners inspect the individual for wires, detonators or other telltale signs of an
IED. Screeners then run their hands lightly along the sides of the torso, and down
the spine. If the individual’s skin is exposed, screeners do not make contact with
it. If the individual has large pockets, the screener may ask him to empty them for
review of any items. Female inspectors conduct searches on females, and male
inspectors inspect males.
Johnston was aware of the pat-down policy before the first game of the
2005 season.3 Press releases announcing the initiation of the pat-down policy
were published in the media, on the Buccaneers’s website and in a direct
communication to season ticket holders. Stadium employees distributed notices
about the pat-down policy to cars entering the Stadium parking lot before games.
2
If contraband is discovered during a search, a uniformed law enforcement officer is
alerted and investigates.
3
Before the 2005 season bags, purses, and other containers carried by those attending
games were searched. Johnston did not before and does not now object to these searches.
4
Announcements were made over loudspeakers outside of the Stadium before
games, advising those who approached the Stadium that pat-downs would be
conducted at the entrances. Multiple signs were placed along common walking
routes, including those from parking areas to the Stadium, announcing the pat-
down policy.
Johnston called the Buccaneers’s office before the first game of the 2005
season to discuss the pat-down search policy. Johnston objected to the policy, and
claims that he was told that the Buccaneers would not refund the cost of season
tickets based solely on his objections. He stated later he would not have accepted
a refund even if offered. Having been advised of the policy, Johnston nonetheless
presented himself and his ticket at an entrance to the Stadium on three occasions.
On each occasion, a screener advised Johnston that a pat-down search would be
performed. Johnston verbally objected to the pat-down but allowed it to be
conducted so that he could attend the games. After attending the second game
Johnston sued the Authority in state court, seeking to enjoin the searches. After
suit was filed, Johnston attended a third game, and, after offering his objection, he
again submitted to a pat-down search. After the third game the Florida state court
enjoined the searches and Johnston attended subsequent games without being
subjected to the search.
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II.PRIOR PROCEEDINGS
On October 13, 2005, Johnston filed suit against the Authority and Henry G.
Saavedra4 in the Thirteenth Judicial Circuit of Florida. Johnston challenged the
constitutionality of the pat-down searches under the Florida Constitution.
Johnston sought nominal damages and an injunction prohibiting the searches. The
state court found the searches unconstitutional under the Florida Constitution, and
enjoined the Authority from continuing them.
The Authority appealed the ruling and the injunction automatically was
stayed under Florida Rule of Appellate Procedure 9.310(b)(2). Johnston moved
the Thirteenth Judicial Circuit of Florida to vacate the automatic stay. His motion
was denied. Johnston filed an emergency motion with the Florida Second District
Court of Appeals to vacate the stay. On November 4, 2005, the motion was
granted and the stay of the injunction was vacated.
Johnston thereafter amended his complaint to add a claim under 42 U.S.C.
§ 1983 that the searches violated the Fourth Amendment to the United States
Constitution. On November 4, 2005, the Authority removed the case to the United
States District Court for the Middle District of Florida and moved the District
4
Johnston sued Defendant Saavedra in his official capacity as Executive Director of the
Authority. Johnston’s claims against Saavedra are indistinguishable from his claims against the
Authority.
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Court to reconsider and vacate the injunction issued by the state court. The
District Court denied the motion, finding that Johnston did not consent to the pat-
down searches, and that the searches violated the Fourth Amendment. This appeal
followed.
III.STANDARD OF REVIEW
After removal, orders issued by the state court are considered orders of the
district court. Jackson v. Am. Sav. Mortg. Corp., 924 F.2d 195, 198 (11th Cir.
1991). This Court reviews for abuse of discretion the grant of a preliminary
injunction. Cumulus Media, Inc. v. Clear Channel Commc’ns, Inc., 304 F.3d
1167, 1171 (11th Cir. 2002). “When reviewing a district court’s entry of
preliminary injunction, we review findings of fact under a clearly erroneous
standard, and conclusions of law de novo.” Horton v. City of St. Augustine, Fla.,
272 F.3d 1318, 1326 (11th Cir. 2001).
IV.DISCUSSION
As the district court stated, this case “is not about the wisdom of . . . [the]
pat-down policy, whether the average Buccaneers fan supports or objects to the
pat-down searches, or whether a judge believes the pat-downs are wise.” The
issue in this case is whether Johnston’s Fourth Amendment rights were violated by
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the pat-down searches.5
It is axiomatic that a search conducted pursuant to voluntary consent is
valid. Schneckloth v. Bustamonte, 412 U.S. 218 (1973). Whether consent is
voluntary is a fact question determined according to the totality of the
5
Considering Johnston’s ticket was only a revocable license to attend games, there is in
the Court’s opinion at least a question concerning whether Johnston had a constitutional right to
pass voluntarily through the Stadium gates without being subjected to a pat-down search, even if
he had not consented to one. Under Florida law, a revocable license is “defined to be an
authority to do a particular act, or series of acts, upon another’s land without possessing any
estate therein.” Devlin v. The Phoenix, Inc., 471 So. 2d 93, 95 (Fla. Ct. App. 1985). A license
“is not a right but is a personal privilege . . . .” Id. “A license . . . is generally revocable at the
pleasure of the grantor . . . .” Dupont v. Whiteside, 721 So. 2d 1259, 1261 (Fla. Ct. App. 1998).
“The distinctive characteristic of a license is that it . . . is, in its very nature, necessarily revocable
at will.” Devlin, 417 So. 2d at 95.
The Buccaneers licensed to Johnston a spectator’s seat at its games. The Buccaneers
could revoke the license and withdraw permission for Johnston or any other ticket holder to enter
the Stadium during games for any reason at the Buccaneers’s sole discretion, subject only to a
refund.
This case is thus different from that addressed by the Court in Bourgeois v. Peters, 387
F.3d 1303 (11th Cir. 2004). In Bourgeois, the appellees sought to engage in a annual protest of
the training conducted at the School of the Americas at Fort Benning, Georgia. The
demonstrations occurred on public property outside of the Fort Benning Military Installation and
not on property of the military installation itself. The city of Columbus implemented
suspicionless magnetometer searches for all seeking to attend the demonstrations. The city
justified the searches in light of past conduct at the demonstrations, including “frenzied dancing,”
large debris used to erect a “global village,” ignition of a smoke bomb, and trespassing on the
grounds of Fort Benning. The city also noted that unrelated protesters at other venues had
allegedly instigated instances of violence, and that the Homeland Security threat assessment was
elevated. Id. at 1307.
The search reviewed by the court in Bourgeois impeded individuals from gathering on a
public property–city land outside of the Fort Benning installation–to engage in political protests
protected by the First Amendment. Id. at 1325. While the protestors in Bourgeois had a right to
protest on public land that the magnetometer searches burdened impermissibly, Johnston had no
parallel right to enter the Stadium for a Buccaneers football game. None of Johnston’s other
constitutional rights appear to be impeded by the pat-down searches–not even a property right, as
Johnston’s ticket granted only a privilege and did not guarantee him a seat.
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circumstances. Id. at 2049-50; United States v. Blake, 888 F.2d 795, 798 (11th
Cir. 1989). Consent is determined on a case-by-case basis. United States v.
Blake, 888 F.2d at 798. See also United States v. Drayton, 536 U.S. 194, 203-04
(2002). Factors relevant to determining voluntariness include whether the person
is in custody, the existence of coercion, the person’s awareness of his right to
refuse consent, the person’s education and intelligence, and whether person
believes that incriminating evidence will be found. Blake, 888 F.2d at 798.
Johnston knew that he would be subjected to a pat-down search by the
Authority if he presented himself at an entrance to the Stadium to be admitted to a
Buccaneers game. That is, he chose to submit voluntarily to the search, stating
only a verbal objection followed by his submission to the pat-down search process
and his ultimate entry into the Stadium to watch Buccaneers football games.
The Blake factors demonstrate the voluntariness of Johnston’s consent.
Johnston was not in custody at the time of the search, rather, he presented himself
willingly at the search point. The screeners did not coerce Johnston, they merely
performed the search to which Johnston submitted. Johnston was not under any
express or implied threat of physical or other retribution if he refused to submit to
the search. Johnston was well aware of his right to refuse to submit to the pat-
down search and did in fact express his objection to the searches to specific
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screeners and over the telephone to the Buccaneers. At the search point, Johnston
pulled his shirt up (apparently to show that he was not wearing an IED) and asked
not to be patted down. When screeners insisted on the pat-down before permitting
Johnston to enter, Johnston elected to be patted down. Johnston appears from the
record to be a man of heightened intelligence and well-educated. The record
shows he did not believe that the search would disclose incriminating evidence, as
evidenced by his attempt to show screeners he was not carrying any suspicious
devices under his shirt.
Considering the totality of the circumstances, the Court concludes that
Johnston voluntarily consented to pat-down searches each time he presented
himself at a Stadium entrance to attend a game. The record is replete with
evidence of the advance notice Johnston was given of the searches including
preseason notice, pregame notice, and notice at the search point itself. It was clear
error for the district court to find that Johnston did not consent to the pat-down
searches which were conducted.
IV.CONCLUSION
For the reasons stated above, we find that the District Court abused its
discretion in making its preliminary finding that Johnston did not consent to the
pat-down searches and that Johnston had a right to attend games that was
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unconstitutionally infringed. Accordingly, the Court REVERSES the decision of
the District Court and REMANDS for further proceedings consistent with this
Order.
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