                      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-
