UNITED STATES of America, Plaintiff-Appellee, v. Craig SANDERS, a/k/a Sparks, Defendant-Appellant, 424 F.3d 768

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, Abo-deely 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.

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 myselfs 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 Abo-deely 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. 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, [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. CedanoMedina, 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, 93 S.Ct. 2041, 36 L.Ed.2d 854 (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, 93 S.Ct. 2041; 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, 88 S.Ct. 1788, 20 L.Ed.2d 797 (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), 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 Miranda 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. 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, 111 S.Ct. 1801, 114 L.Ed.2d 297 (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 attempting] to reach into his pockets at the 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.1990) (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, 352 S.C. 577, 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, 111 S.Ct. 1801 (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 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 Abo-deely 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, 401 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, 113 S.Ct. 2130, 124 L.Ed.2d 334 (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 Abo-deely’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 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 Abo-deely’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, 111 S.Ct. 1801. 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 Abo-deely 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 — 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 Abo-deely’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.

Abo-deely 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, 151 N.H. 537, 864 A.2d 1095 (2004), United States v. Brown, 884 F.2d 1309 (9th Cir.1989), and Mattison, 352 S.C. 577, 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 856-57, 352 S.C. 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 made,” Lowe, 50 F.3d at 607, we hold the district court clearly erred in concluding Sanders did not withdraw his consent to search. Ill 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. . Miranda v. Arizona, 384 U.S. 436, 473, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966).