                NOT RECOMMENDED FOR FULL-TEXT PUBLICATION
                           File Name: 11a0002n.06

                                           No. 08-5947                                   FILED
                                                                                      Jan 03, 2011
                             UNITED STATES COURT OF APPEALS                     LEONARD GREEN, Clerk
                                  FOR THE SIXTH CIRCUIT


UNITED STATES OF AMERICA,                                )
                                                         )         ON APPEAL FROM THE
       Plaintiff-Appellee,                               )         UNITED STATES DISTRICT
                                                         )         COURT FOR THE WESTERN
v.                                                       )         DISTRICT OF KENTUCKY
                                                         )
DENNYSON WARFIELD,                                       )                           OPINION
                                                         )
       Defendant-Appellant.                              )
                                                         )




BEFORE:        NORRIS, COLE, and KETHLEDGE, Circuit Judges.

       COLE, Circuit Judge. Defendant-Appellant Dennyson Warfield appeals the denial of his

motion to suppress drugs seized at a jail after he dropped them in anticipation of a strip-search for

suspected possession of contraband. For the reasons below, we AFFIRM.

                                                 I.

       On February 14 and 28, 2006, Kentucky State Police Detective Brad Harper worked with a

confidential informant who successfully arranged two purchases of cocaine and cocaine base from

Warfield. After each transaction, Detective Harper recovered approximately three ounces of cocaine

or cocaine base from the informant’s purchase from Warfield.

       The Kentucky state police then had the informant arrange to meet Warfield on March 16,

2006 to purchase an additional eight ounces of crack cocaine, and they learned from the informant
No. 08-5947
USA v. Warfield

that Warfield would be driving the black pick-up truck he had used during the February 28, 2006

transaction. Having performed a background check on Warfield prior to March 16, Detective Harper

knew that Warfield was driving on a suspended license. According to Detective Harper, who was

following Warfield’s truck on March 16 in an unmarked police car, Warfield was swerving into and

out of the emergency lane on the highway. Moreover, when two state troopers traveling in marked

police cars approached Warfield from the opposite direction, Warfield failed to dim his lights.

       The two state troopers (one of whom had a drug-detection dog) stopped Warfield before he

could meet the informant, having heard over the police radio that Warfield had been swerving; they

performed their own license check of Warfield, and then arrested him for operating a motor vehicle

with a suspended driver’s license. After placing Warfield in one of the police cars, the officers

walked the dog around Warfield’s truck; the dog alerted to the driver’s door and subsequently to the

driver’s seat, indicating the odor of drugs. The dog also alerted to Warfield’s truck’s tailgate, where

Warfield had sat briefly while being arrested. A pat-down search of Warfield and search of

Warfield’s vehicle revealed no contraband or weapons.

       The police then transported Warfield to the Warren County Regional Jail. Detective Harper

relayed the information to the officers at the jail regarding the drug-detection dog’s indication of the

presence of drugs where Warfield had sat inside and outside his vehicle and the officers’ failure to

find any drugs in Warfield’s vehicle or in a pat-down search of him. Based on this information, a

nine-year-old drug conviction, and Warfield’s refusal to submit to a search without his lawyer

present, the police at the jail suspected Warfield of possessing drugs on his person and took him into

a room for an unclothed pat-down search. After the police took him into a separate room but before

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USA v. Warfield

they could conduct the strip-search, Warfield dropped a small baggie that he had concealed in his

crotch area. The baggie contained approximately eight ounces of white powder, which tested

positive for crack cocaine.

       Warfield was subsequently prosecuted for distribution of fifty grams or more of cocaine base,

in violation of 21 U.S.C. §§ 841(a)(1) and (b)(1)(A)(iii), and distribution of cocaine, in violation of

21 U.S.C. §§ 841(a)(1) and (b)(1)(C). Warfield moved to suppress the cocaine as the fruit of an

illegal search, but the district court denied his motion after a suppression hearing. Warfield then

entered a conditional guilty plea maintaining his ability to appeal the district court’s denial of his

motion to suppress. The district court sentenced Warfield to 151 months of imprisonment, to be

followed by five years of supervised release. Warfield timely appealed the denial of his motion to

suppress.

                                                  II.

       In assessing the denial of a motion to suppress, we review the district court’s findings of fact

for clear error and its conclusions of law de novo. United States v. Foster, 376 F.3d 577, 583 (6th

Cir. 2004). We view the evidence “in the light most likely to support the district court’s decision.”

United States v. Navarro-Camacho, 186 F.3d 701, 705 (6th Cir. 1999) (internal quotation marks and

citation omitted).

       Warfield objects centrally to the threatened strip-search at the jail, the anticipation of which

led him to drop the baggie containing the crack cocaine. Because it was merely the anticipation of

a strip-search that led to Warfield’s action, the government argues that Warfield abandoned the drugs

before the alleged search, and that Warfield’s challenge to the search is therefore besides the point.

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USA v. Warfield

This may be so, see United States v. Robinson, 390 F.3d 853, 873-74 (6th Cir. 2004) (“If property

has been ‘abandoned’ . . . , the Fourth Amendment is not violated through the search or seizure of

this property.” (citation omitted)), but we proceed assuming arguendo that the seizure’s legitimacy

is tied to that of the strip-search, because the threat of the search spurred Warfield’s abandonment

of the baggie. Before reaching that issue, however, we must address the propriety of Warfield’s

detention in the first place.

        Warfield does not, nor could he, contest that the Kentucky state police could properly arrest

him for driving on a suspended license. See KY . REV . STAT . §§ 186.620(2), 186.990(3), 532.090(2).

The police therefore did not need reasonable suspicion or probable cause of Warfield’s commission

of any other crime to take him into custody and search him incident to arrest. See United States v.

Robinson, 414 U.S. 218, 233-35 (1973); United States v. Smith, 549 F.3d 355, 360-61 (6th Cir.

2008). Moreover, “[a] police officer’s determination as to how and where to search the person of

a suspect whom he has arrested . . . , while based on the need to disarm and to discover evidence,

does not depend on . . . [the possibility] that weapons or evidence would in fact be found upon the

person of the suspect.” Robinson, 414 U.S. at 235. We have explained further that, after a lawful

arrest, “the suspect and any effects in his possession . . . subject to search at the time and place of

his arrest may lawfully be searched and seized without a warrant even though a substantial period

of time has elapsed between the arrest . . . and the taking of the property.” Smith, 549 F.3d at 361

(internal quotation marks and citation omitted).

        The search at issue here, nevertheless, was not an ordinary pat-down incident to arrest, but

a full, unclothed search at the jail. Such a search comports with the Fourth Amendment only if the

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USA v. Warfield

circumstances demonstrate that it was “reasonable.” Bell v. Wolfish, 441 U.S. 520, 559 (1979). In

making such a determination, we must balance “the need for the particular search against the

invasion of personal rights that the search entails,” and must “consider the scope of the particular

intrusion, the manner in which it is conducted, the justification for initiating it, and the place in

which it is conducted.” Id.

       Applying this balancing test, we initially note that the relatively limited scope, standard

manner and separate room in which the jail officers were about to strip-search Warfield weigh in

favor of finding the search reasonable. The inquiry here, however, centers principally around the

context of and justification for the strip-search. As to the context, the personal rights affected by a

strip-search greatly depend on the location—for example, a school versus a prison—and are least

weighty in a jail or other detention facility, such as here. See Reynolds v. City of Anchorage, 379

F.3d 358, 362-64 (6th Cir. 2004). This difference exists because “[a] detention facility is a unique

place fraught with serious security dangers . . . [including the s]muggling of . . . drugs.” Bell, 441

U.S. at 559.

       As to the justification for the search, courts sometimes examine the local policies in the

course of the reasonableness determination, see, e.g., Dobrowolskyj v. Jefferson Cnty., 823 F.2d 955,

956, 958 (6th Cir. 1987), and we here find instructive Kentucky’s jail policies on when strip-searches

are appropriate: “A prisoner may be strip searched only on reasonable suspicion that is based upon

the existence of objective information that may predict the likelihood of the presence of” drugs. 501

KY . ADMIN . REGS. 3:120, § 3(1)(b); see also Reynolds, 379 F.3d at 364 (finding a strip-search

reasonable because of particularized suspicion of drug possession, among other things). The

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USA v. Warfield

Kentucky regulations premise “reasonable suspicion” on a showing of, in relevant part, “[a] criminal

history of offenses involving . . . the possession of contraband,” or “[i]nstitutional behavior, reliable

information, or history that indicates possession . . . of contraband, [or] the refusal to submit to a

clothed pat down search.” 501 KY . ADMIN . REGS. 3:120, § 3(1)(b)(2)-(3).

        Here, three facts justified the jail officers’ reasonable suspicion that Warfield possessed

drugs: (1) his prior drug conviction; (2) his refusal to submit to a search; and, most importantly, (3)

the relayed information regarding Warfield’s suspected possession of contraband, specifically

through the alerting of the drug-detection dog.1 These considerations created reasonable suspicion

that Warfield possessed drugs, and thus provided an adequate reason under Bell for the jail officers’

strip-search of Warfield. Therefore, even assuming Warfield did not abandon the baggie of crack

cocaine, the threatened strip-search of Warfield was reasonable under the totality of the

circumstances and did not violate Warfield’s right to be free of unreasonable searches and seizures

under the Fourth Amendment.




        1
         Warfield makes much ado of the length of his roadside detection, and the absence of
testimony regarding the first dog’s training or the alerting of a second drug-detection dog that the
police used later. However, these arguments are not well taken. First, the cases Warfield cites
discussing the propriety of extending a traffic or Terry stop through use of a drug-detection dog are
inapposite, because Warfield’s arrest justified his detention for up to ninety days, see KY . REV . STAT .
§§ 186.620(2), 186.990(3), 532.090(2), let alone the minutes or hours at issue here. Second,
testimony about the dog’s training would be necessary only to establish probable cause justifying
Warfield’s arrest, see, e.g., United States v. Torres-Ramos, 536 F.3d 542, 554 (6th Cir. 2008),
not—as sought here—to support a reasonable suspicion that Warfield possessed contraband at the
jail where none was found in his car or clothing after the dog’s alerting. Third, the officer’s
testimony as to the use of another dog, without an affirmative statement that the second dog alerted
as well, is inadequate to undermine the officer’s extensive testimony about the first dog’s actions.

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USA v. Warfield

                                             III.

       For the foregoing reasons, we AFFIRM the district court’s denial of Warfield’s motion to

suppress.




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