Tampa Bay stadium entry consent search reaffirmed by 11th Cir.

The Eleventh Circuit grants rehearing in the Tampa Bay NFL stadium entry search case, a year after the original opinion (490 F.3d 820), and files a substitute opinion. The court holds that the NFL dictates the policy, and the policy leads to consent searches; the ticketholder does not have to enter if he or she refuses the search. Thus, the plaintiffs fail on their burden of proof for a preliminary injuction as to showing a likelihood of success on the merits. Alternatively, a “vital [public] interest” was shown for the consent entry searches. Johnston v. Tampa Sports Authority, 530 F.3d 1320 (11th Cir. 2008):

Whether consent is voluntary is a fact question determined according to the totality of the circumstances. Schneckloth, 412 U.S. at 226-27; Iaccarino, 767 So. 2d at 476; United States v. Blake, 888 F.2d 795, 798 (11th Cir. 1989). Consent is determined on a case-by-case basis. Blake, 888 F.2d at 798; United States v. Garcia, 890 F.2d 355, 360 (11th Cir. 1989). Both the federal and Florida courts have enumerated non-exhaustive lists of factors to be considered in performing the analysis. We have previously identified the following non-exhaustive factors to consider in determining voluntariness: 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 the person believes incriminating evidence will be found. Blake, 888 F.2d at 798 (quoting United States v. Chemaly, 741 F.2d 1346, 1352 (11th Cir. 1984)). Florida courts look for the existence of express or implied consent and consider the following implied consent factors: (1) whether the defendant was aware his conduct would subject him to search; (2) whether the search was supported by a “vital interest;” (3) whether the searching officer had apparent authority to search and arrest; (4) whether the defendant was advised of his right to refuse; and (5) whether refusal would result in a deprivation of a benefit or right. Iaccarino, 767 So. 2d at 476. Consent is not voluntary if the government conditions receipt of a right or a benefit on the relinquishment of a constitutional right. Bourgeois v. Peters, 387 F.3d 1303, 1324 (11th Cir. 2004) (citing Adams v. James, 784 F.2d 1077, 1080 (11th Cir. 1986)); Iaccarino, 767 So. 2d at 479.

For the purposes of our analysis of whether this warrantless search was unconstitutional under the United States and Florida constitutions, we accept the District Court’s conclusion that the search was performed by agents of the State. Johnston, 442 F. Supp. 2d at 1264. The question then is whether the District Court abused its discretion in misapplying the consent exception to the facts of this case. We hold that Johnston voluntarily consented to the pat-down searches and thus has not shown a substantial likelihood of success on the merits.

Johnston knew well in advance 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 on two occasions, 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 factors we enumerated in United States v. Blake 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 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 screeners and over the telephone to the Buccaneers before the searches were implemented. 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 and thereby gain entrance to the Stadium. 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 shown by his attempt to show screeners he was not carrying any suspicious devices under his shirt.

Johnston also impliedly consented to the search under the factors for implied consent developed by Florida courts. Johnston was well-aware his insistence in entering the Stadium would cause him to be subject to a search. The record also reflects that Johnston was aware of his ability to refuse to be searched and leave the Stadium. There is no evidence that the Authority would have detained Johnston if he refused, or that Johnston otherwise believed the searches to be compulsory.

We also conclude the searches supported a “vital interest.” The NFL and the Buccaneers instituted the pat-down policy specifically to guard against mass casualties at NFL games from a potential terrorist attack. We cannot doubt the NFL’s interest in protecting its patrons. Unlike the searches for drugs, bottles, and cans considered in Iaccarino, 767 So. 2d at 473, the pat-down searches in this case supported an interest well beyond general law enforcement.