United States Court of Appeals
                               FOR THE EIGHTH CIRCUIT
                                      ___________

                                      No. 99-3027
                                      ___________

United States of America,                  *
                                           *
       Plaintiff - Appellee,               *
                                           * Appeal from the United States
       v.                                  * District Court for the
                                           * District of Nebraska.
Paul Ray Jones,                            *
                                           *
       Defendant - Appellant.              *
                                      ___________

                                Submitted: December 14, 1999

                                     Filed: June 18, 2001
                                      ___________

Before McMILLIAN, JOHN R. GIBSON, and MAGILL, Circuit Judges.
                            ___________

JOHN R. GIBSON, Circuit Judge.

       Paul Ray Jones pled guilty to a charge of possessing cocaine with intent to
distribute it, but he reserved the right to appeal the district court's denial of his motion
to suppress evidence. We reverse the district court's ruling on the suppression motion
and accordingly vacate Jones's conviction and sentence.

       Jones arrived at Omaha's Eppley Airfield on a flight from Phoenix. As Jones left
the airport, Nebraska State Patrol Investigator Richard Lutter noticed that rather than
proceeding in a straight line, Jones walked around a bank of telephones. Lutter found
this suspicious and began to watch Jones. He noticed that Jones looked behind him
three times as he walked through the terminal and that Jones did not stop at the luggage
claim, but walked straight out to the taxi stand. Lutter testified that as a trained
narcotics investigator, when he sees someone go directly to the taxi stand, he suspects
the person is trying to limit his or her time in the public area by moving "quickly from
the airplane to a semi-secure or at least a mobile area." Lutter said that when he sees
people who appear to be nervous and who proceed straight from the plane to the taxi
stand, he will "talk to them on each and every occasion." Lutter therefore used his
cellular phone to summon another officer and walked up to Jones at the taxi stand.

        Lutter displayed his badge to Jones and told him that he was not in trouble or
under arrest. Lutter asked Jones if he would speak with him. Jones turned around to
talk to Lutter. Jones complied with Lutter's requests to show identification and his
plane ticket, which showed Jones's flight originated in Los Angeles, a "source city" for
drugs. Lutter noticed a bulge in the front part of Jones's waistband that he thought did
not appear to be part of Jones's anatomy. Lutter suspected that the bulge might be
illegal contraband secured to Jones's midsection. He told Jones his job was to look for
people transporting narcotics and asked Jones if he had any narcotics. Jones said no.
Lutter then asked if he could search Jones and his luggage, and Jones said, "Yes, you
can search my bag," and handed Lutter the bag. By this time, the other officer had
arrived and was standing beside Lutter.

       Lutter then specifically asked for permission to search Jones's person. Jones
took a step back. He said, "If there's a problem, I can take off all my clothes and you
can empty out my bag." Lutter advanced a step toward Jones and said that it would
not be necessary for Jones to take off his clothes, but that he wanted to search Jones's
person. Jones again stepped back and repeated his offer to take off all his clothes.
Lutter asked Jones about the bulge at his waist. Jones said he had had surgery, and he
put his hands on the bulge. Although Lutter's report written immediately after the
incident reports no further gestures, at the suppression hearing Lutter said that Jones

                                          -2-
then held his arms out away from his body about ten to eighteen inches from his
midsection, with his palms turned out. Lutter touched the bulge and thought it felt like
"packaging that is consistent with the packaging of illegal narcotics." He arrested Jones
and searched him. The bulge turned out to be a package of cocaine, and Lutter found
another such bag strapped to Jones's back.

      Jones moved to suppress the cocaine, arguing that Lutter stopped him without
reasonable suspicion and searched him without probable cause. After a hearing, the
magistrate judge recommended denial of Jones's suppression motion. The magistrate
judge found that the encounter between Jones and Lutter was consensual: Jones
expressly consented to the search of the bag, and he impliedly consented to Lutter's
touching of the bulge. The magistrate concluded that after Lutter touched the package,
there was "a basis" to arrest and search Jones.

       The district court accepted the magistrate judge's report and recommendation.
The district court found, "The encounter began as a consensual one and remained
consensual." In particular, the district court found that Jones expressed consent to
Lutter's touching his midsection by saying he would take off his clothes and by moving
his arms away from his body when Lutter asked to search him. The district court also
found that this expression of consent was voluntary: "Even though the Defendant's
consent was not enthusiastically given and was implied by his actions and statements
of being willing to remove his clothing, it was knowing and voluntary."

       On appeal, Jones argues that he did not express consent by word or gesture to
Lutter's touching him and even if his actions could be taken as consent, they were not
voluntary.

      The determination of whether Jones expressed consent is a question of fact,
which we review for clear error. See United States v. Dupree, 

, 1049
(8th Cir. 2000). The precise question is not whether Jones consented subjectively, but

                                           -3-
whether his conduct would have caused a reasonable person to believe that he
consented. See United States v. Sanchez, 

, 1333-35 (8th Cir. 1994)
(officer reasonably believed defendant consented where companion appeared to
translate requests into language defendant understood, defendant signed consent to
search, and companion assisted in opening truck). Consent can be inferred from words,
gestures, and other conduct. See United States v. Mendoza-Cepeda, No. 00-3116,

at *1 (8th Cir. May 18, 2001) (consent to touch misdsection
expressed by suspect raising arms in response to request); United States v. Gleason,

, 607 (8th Cir. 1994) (defendant consented to search for weapons and
cheerfully assisted in search that discovered other evidence of robbery; officer could
infer consent to general search from assistance and demeanor); United States v.
Barahona, 

, 417-418 (8th Cir. 1993) (consent to search of car where
defendant read consent form, said, "You can look, sir," unlocked car doors, and waved
arm toward car in "inviting manner").

       The district court found that Jones's consent "was implied by his actions and
statements of being willing to remove his clothing." By "actions" the district court
apparently referred to Jones's gesture of opening his arms that Lutter testified about at
the hearing, but omitted from his contemporaneous report. This gesture alone must
bear the weight of the district court's finding of consent, because it is clear that Lutter
did not interpret Jones's comments about taking off his clothing as a consent to Lutter
touching him. Lutter testified that after he asked if he could search Jones, Jones
stepped back as he said, "If there's a problem, I can remove my clothes and empty my
bag." Lutter obviously did not interpret this as consent, because he asked Jones again
for permission to search his person. Jones repeated the step back and repeated that he
would take off his clothes. Lutter still did not proceed to search Jones on the strength
of the "offer" to disrobe, but asked Jones about the bulge. After talking about the
bulge, Lutter said he did not touch Jones until Jones opened his arms in the gesture that
Lutter took to convey consent. If we were acting as fact finders, we would be reluctant
to hang a finding of consent on this late-remembered gesture. Nevertheless, the district

                                            -4-
court did so, and its credibility findings are well-nigh unreviewable, so long as the
findings are not internally inconsistent or based on testimony that is incoherent,
implausible, or contradicted by objective evidence in the case. See United States v.
Heath, 

, 1275 (8th Cir. 1995) (credibility findings virtually unreviewable);

(same); see generally Anderson v. City of Bessemer City, 

, 575 (1985) (district court's credibility determination can virtually never be
clear error if based on coherent testimony not contradicted by extrinsic evidence and
if finding not internally inconsistent). The district court's finding of consent is not
internally inconsistent, nor is it based on testimony that is incoherent or implausible or
that was contradicted by objective evidence. Moreover, the facts of Jones's case are
extremely similar to our recent case of Mendoza-Cepeda, in which a suspect who
raised his arms in response to the investigator's request to touch his midsection was
found to have consented to the touching. 

at *1. The finding is
therefore not clearly erroneous.

        The question of whether an expression of consent is voluntary or coerced is
also a question of fact, subject to review for clear error. See United States v. Perez,

, 579 (8th Cir. 2000); United States v. Hathcock, 

, 719-20
(8th Cir. 1997). We have identified factors to be considered in making this
determination, including personal characteristics of the defendant, such as age,
education, intelligence, sobriety, and experience with the law; and features of the
context in which the consent was given, such as the length of detention or questioning,
the substance of any discussion between the defendant and police preceding the
consent, whether the defendant was free to leave or was subject to restraint, and
whether the defendant's contemporaneous reaction to the search was consistent with
consent. See 

       The district court found: "[T]he Defendant was an adult who was educated
through the eleventh grade, has had experience with law enforcement, did not appear
to be under the influence of drugs or alcohol, was in a public place, was not threatened

                                           -5-
or punished, and did not protest the search." The district court found that Jones's
consent was "knowing and voluntary."

       Jones argues that Lutter's "relentless badgering" caused him to consent
involuntarily. There is certainly no legal rule that asking more than once for permission
to search renders a suspect's consent involuntary, see, e.g., 

,
720, particularly where the suspect's initial response is ambiguous, as Jones's response
was in this case. On this record, it was for the district court to determine whether
Lutter's persistence and the presence of the backup officer at the scene overwhelmed
Jones and rendered his consent involuntary. We cannot say the finding of voluntariness
was clearly erroneous.

       Although we must uphold the district court's finding that Jones consented freely
to Lutter's touching him, the district court's holding approving Lutter's subsequent arrest
and search of Jones conflicts with our case law. The magistrate judge reasoned that
once Lutter touched the bulge, there was probable cause to arrest and search Jones:
"[F]ollowing the discovery of the 'bundle' on Jones' waist area, Investigator Lutter had
a basis to detain and arrest Jones for a complete search." The district court adopted the
magistrate judge's report and recommendation. In determining whether there was
probable cause to make a warrantless arrest, we review findings of historical fact for
clear error, but the existence of probable cause is subject to de novo review. See
United States v. Tovar-Valdivia, 

, 1027 (8th Cir. 1999). Two of our
cases present similar scenarios in which drug interdiction officers approached travelers
after making observations that did not amount to reasonable suspicion and noticed
bulges under their clothing. In Tovar-Valdivia, after the officer touched the bulges on
the suspect's side and concluded the bulges were not part of the suspect's anatomy, he
arrested the suspect. We held that the officer did not have probable cause: "The
bulges could have been bandages about his body, a money belt worn about his ribs, or
any number of non-contraband 

. In United States v.
Eustaquio, 

(8th Cir. 1999), another case involving Lutter, Lutter noticed

                                            -6-
the traveler had a bulge under her clothing and demanded that she pull her clothing tight
against the bulge, which she refused to do. We held that these facts did not create even
a reasonable suspicion that crime was afoot (not to mention probable cause) and that
the district court erred in holding that they did. 

In a third case involving
a traveler with a bulge in her midsection, United States v. Favela, 

(8th
Cir. 2001), the suspect's conduct gave additional grounds for suspicion. The
investigator in Favela knew that the suspect had paid for her one-way ticket from
California in cash and that she was staying in Kansas City only one day. When the
investigator asked Favela about the bulge above her stomach, she "sighed, shrugged her
shoulders, and looked at the floor." 

With Favela's consent, the investigator
touched the bulge and found two hard bulges. 

that there was probable
cause for Favela's arrest. 

        Before Lutter touched the bulge on Jones's midsection, the facts he had observed
did not amount even to grounds for a reasonable suspicion of wrongdoing. Jones's
walking around the phone bank, looking behind him, traveling without luggage, and
arriving from Los Angeles are not sufficiently suggestive of crime to constitute
reasonable suspicion. Cf. 

(no reasonable suspicion
from similar facts); United States v. Collins, 

, 1197 (8th Cir. 2000)
(suspect arrived from source city, looked around, didn't stop for luggage, paid for ticket
with cash; no reasonable suspicion). "Too many people fit this description for it to
justify a reasonable suspicion of criminal activity." 

;
accord United States v. Gray, 

, 1001 (8th Cir. 2000) (walking in high
crime area at 10:00 on cold night and crossing street in hurried fashion). Under Tovar-
Valdivia and Eustaquio Lutter's determination that Jones had a bulge under his clothing
that was not part of his body did not give Lutter probable cause to arrest and search
Jones. Nothing in Jones's case augments the observation of the bulge to add up to
probable cause. Unlike the traveler in Favela, who was unable to explain the bulge on
her midsection, Jones told Lutter that the bulge on his midsection was from a recent
surgery. After Lutter touched the bulges, he added nothing to his previous observations

                                           -7-
except that he felt a "bundle" approximately ten inches long and six inches wide taped
to Jones's person. He said he concluded the bulge was drugs because he had never
encountered "anything of the nature of a hard, square bundle secured with tape. . . to
a person that's traveling on the airplane that is not illegal narcotics or illegal
contraband." He did not say that touching the package gave him reason to believe that
the bulge was not a bandage, as Jones had implied it was. In fact, Lutter admitted on
cross-examination that when he saw the bulge, it could have been a bandage, but
"[b]ased on the information and observations of Mr. Jones, I believed it to be illegal
contraband." In other words, he based his opinion in part on his earlier observations
of Jones, which we have already determined were not as suspicious as Lutter thought
they were. In sum, Lutter's testimony about touching the package does not supply any
new facts supporting probable cause, but rather consists of a legal opinion we
disapproved in Tovar-Valdivia and Eustaquio– that the mere presence of a bulge under
a person's clothing, which is not part of the person's anatomy, amounts to evidence of
drug possession. See 

("In Tovar-Valdivia, even after the
officer felt a bulge and determined it was not a part of the defendant's anatomy, we held
the officer did not have probable cause to arrest.") Lutter's legal conclusion is not
entitled to evidentiary weight.

        This case, like the others we have discussed, depends on its particular facts, and
it is a close case. The factual scenario falls somewhere between Tovar-Valdivia and
Eustaquio, which had been decided before we heard argument in this case, and
Mendoza-Cepeda and Favela, which were decided after argument. Comparing our
facts with those in the four other cases, we are convinced Jones's case falls closer to
Tovar-Valdivia and Eustaquio. We must conclude that the arrest was not supported by
probable cause.

       The arrest was tainted, and the subsequent search and discovery of the cocaine
were fruit of the arrest.


                                           -8-
      We vacate the conviction and sentence and order the evidence suppressed.

MAGILL, Circuit Judge, dissenting.

      I concur in the Court's holding that Jones voluntarily consented to be searched
by Investigator Lutter. However, because I conclude that Investigator Lutter had
probable cause to arrest the defendant, I respectfully dissent from the majority's
reversal of the defendant's conviction.1

       "Probable cause to conduct a warrantless arrest exists when at the moment of
arrest police have knowledge of facts and circumstances grounded in reasonably
trustworthy information sufficient to warrant a belief by a prudent person that an
offense has been or is being committed by the person to be arrested." United States v.
Hartje, No. 00-2421, 

, at *3 (8th Cir. May 31, 2001). In determining
whether probable cause exists, we consider the "law enforcement officer's experience
and familiarity with the practices of narcotics couriers." Cf. United States v. Condelee,

, 1209 (8th Cir. 1990). The probable cause inquiry does not require us
to "evaluate each piece of information independently; rather, we consider all of the
facts for their cumulative meaning." United States v. Nation, 

, 470 (8th
Cir. 2001).

       At the time of the defendant's arrest, Investigator Lutter had been a narcotics
investigator for four years, having received special training in that field. Investigator


      1
        Jones's appellate briefs focus on whether he voluntarily consented to the search,
and fail to address whether Investigator Lutter had probable cause to perform the
search after touching the bulge in Jones's mid-section. A party's failure to raise an issue
in his opening appellate brief constitutes a waiver of that issue. United States v. Hook,

, 310 (7th Cir. 1999); United States v. Cammisano, 

, 1061
n.1 (8th Cir. 1990). I thus have some doubt whether Jones even properly raised the
argument that Investigator Lutter lacked probable cause to arrest.
                                            -9-
Lutter had worked for two and a half years in commercial interdiction, which is the
observation and interception of drug couriers traveling through bus stations, train
stations, and airports. At Eppley Airfield alone, Investigator Lutter had made at least
forty drug-related arrests, twenty of which involved narcotics strapped to individuals'
bodies. Thus, Investigator Lutter was an experienced narcotics investigator, and his
observations are due considerable deference.

       In this case, Investigator Lutter noticed Jones: (1) embark a flight from Los
Angeles via Phoenix, both drug source cities; (2) walk quickly in an abnormal pattern
through part of the airport that most passengers do not walk when exiting an airplane;
(3) turn his head and shoulders to look behind him at least three separate times; and (4)
proceed directly to a taxi stand without picking up any luggage. Upon talking with
Jones, Investigator Lutter further observed that: (5) Jones's ticket had been issued on
the day of travel; (6) Jones stated that he came to Omaha to visit a cousin named
Anthony, but when asked where Anthony lived, Jones did not respond; and (7) Jones
became very nervous and agitated when Investigator Lutter asked to search his person.2

       Most important was Investigator Lutter's observation and subsequent touching
of the bulge in Jones's mid-section. Investigator Lutter testified that when he was
talking with Jones, he noticed "a bulge that was not consistent with the natural contour
of Mr. Jones's body." Jones subsequently provided consent for Investigator Lutter to
touch the bulge. Investigator Lutter testified: "At the point that I felt the package and
its consistency and the manner it was secured, I believed it to be controlled substance."
Investigator Lutter then agreed with Jones's counsel's question: "And you squeezed
your fingers together [around the bulge] because you want[ed] to get a feel for what's
under there, right?" Given Investigator Lutter's training and experience in narcotics


      2
       Although none of these individual factors amount to probable cause or even
reasonable suspicion, I doubt the majority's assertion that the combined factors do not
amount to reasonable suspicion.
                                          -10-
investigation and commercial interdiction, Lutter's belief that the bulge he felt in Jones's
mid-section contained illegal drugs provided him with probable cause to make the
warrantless arrest, irrespective of the factors that created his initial suspicion. Together
with those initial reasons for suspicion, I have little trouble concluding that Investigator
Lutter had probable cause to arrest Jones.

       Indeed, in United States v. Favela, No. 00-2314, 

(8th Cir. Apr.
26, 2001), this Court recently found probable cause to arrest under remarkably similar
facts. In Favela, a police officer stopped the defendant at the Kansas City International
Airport. 

The officer asked the defendant to pull her shirt tight against her
stomach. 

defendant complied, the officer noticed a bulge around her
stomach, and asked the defendant whether he could touch the bulge. 

the defendant’s consent, the officer felt two hard bulges that he believed to be
narcotics. 

then placed the defendant under arrest and discovered drugs
taped to the defendant’s body in a search incident to the arrest. 

held
that probable cause existed to effect the arrest. 

       The factual scenario presented in Favela is, in all relevant respects, identical to
the scenario presented here. Both defendants consented to searches of their persons,
the police officers felt bulges they believed to be narcotics, and the officers then
arrested the defendants. In Favela, this Court held that these facts provided the officer
with probable cause to arrest. 

In this case, however, the majority holds that
these facts do not constitute probable cause, and suppresses the drugs discovered on
Jones’s body. In fact, given the existence here of several suspicious factors not present
in Favela, such as Jones's repeated backward glances and agitated state, I believe this
to be the "easier" case.

       The majority, however, argues that Favela is distinguishable from this case
because Jones told Investigator Lutter that the bulge in his mid-section resulted from
a recent surgery, while the Favela defendant did not explain the source of the bulge in

                                            -11-
his stomach. But what the officers in Favela and in this case felt when touching the
defendants' mid-sections is vastly more important than how the defendants explained
the bulges. And Investigator Lutter testified that when he felt the bulge in Jones's mid-
section, given "the package and its consistency and the manner it was secured, I
believed it to be controlled substance." In any event, surely the existence of probable
cause does not depend on a defendant's ability to deceive the police.

       The majority finds support for its holding that Investigator Lutter did not have
probable cause to arrest Jones in this Court’s opinions in United States v. Tovar-
Valdivia, 

(8th Cir. 1999) (per curiam), and United States v. Eustaquio,

(8th Cir. 1999). I believe that both Tovar-Valdivia and Eustaquio are
distinguishable from this case. In Tovar-Valdivia, a police officer stopped the
defendant at a bus 

. While talking to the defendant, the
officer noticed bulges under the defendant’s shirt. 

The officer felt the
bulges and determined only that they were not part of the defendant’s body. 

point, the officer handcuffed the defendant, which this Court held to be an arrest,
thereby requiring probable cause. 

then unbuttoned the defendant’s shirt
and found drugs strapped to his body. 

whether the police officer had probable cause to arrest the
defendant after feeling the bulges around the defendant’s mid-section, the Tovar-
Valdivia court noted: “The officer testified that after touching the bulges, he still did
not know what the bulges were; all he knew was that they were not part of the
defendant’s anatomy.” 

The court further noted that the bulges under the
defendant’s shirt “could have been bandages about his body, a money belt worn about
his ribs, or any number of non-contraband items.” 

contrast, Investigator Lutter testified that the bulge in Jones’s mid-
section felt like “packaging that is consistent with the packaging of illegal narcotics.”
This testimony distinguishes this case from Tovar-Valdivia, where the officer admitted

                                          -12-
that after touching the bulges “he still did not know what the bulges were; all he knew
was that they were not part of [the defendant’s] 

.
Investigator Lutter had more information than merely knowing that the bulges were not
part of Jones’s body. In other words, unlike the officer in Tovar-Valdivia, Investigator
Lutter’s touching of Jones’s mid-section informed him that the bulges were not
“bandages about his body, a money belt worn about his ribs, or any number of non-
contraband items.” Id.3

       This Court’s decision in Eustaquio also is distinguishable. In Eustaquio,
Investigator Lutter stopped the defendant at an Omaha 

.
Investigator Lutter asked the defendant to pull her shirt tight against her body, but the
defendant instead pulled her shirt away from her body. 

Lutter saw a bulge in the defendant's mid-section and, without the defendant’s consent,
poked the bulge. 

jumped back and told Investigator Lutter that he
could not touch her. 

, assuming that Investigator Lutter did not detain
the defendant until he touched her, held that Investigator Lutter did not have reasonable
suspicion to detain the defendant before he touched the bulge protruding from the
defendant’s mid-section. 

      The difference between this case and Eustaquio is that Jones consented to be
searched by Investigator Lutter. By contrast, the defendant in Eustaquio never


      3
         The majority finds relevant Investigator Lutter's statement that "when he saw
the bulge, it could have been a bandage." But Investigator Lutter's concession that,
before he touched the bulge, the possibility existed that the bulge might not contain
illegal drugs is largely irrelevant. What is relevant is Investigator Lutter's belief after
touching the bulge that Jones was carrying illegal narcotics. Regardless, the police are
not required to possess metaphysical certainty that the suspect at issue is carrying
illegal contraband. We merely require police officers to have "reasonably trustworthy
information sufficient to warrant a belief by a prudent person that an offense has been
or is being committed by the person to be arrested." Hartje, 

, at *3.
                                           -13-
consented to a search of her person. 

see also Favela, 

,
at *1 (distinguishing Eustaquio by noting that the defendant in Favela consented to a
search of her person); United States v. Mendoza-Cepeda, No. 00-3116, 

, at *2 (8th Cir. May 18, 2001) (distinguishing Eustaquio by noting that the
defendant in Mendoza-Cepeda consented to a search of his person). Thus, the
Eustaquio court refused to consider what Investigator Lutter felt when he touched the
bulge in analyzing whether Lutter had reasonable suspicion to touch the defendant’s

. In this case, however, Jones gave Investigator Lutter
consent to search his person; therefore, we must examine Investigator Lutter’s belief
that the object he felt through Jones’s clothing was drugs in evaluating whether
Investigator Lutter had probable cause to arrest the defendant after touching the bulge.

       Finally, even if I were to conclude that Investigator Lutter did not have probable
cause to arrest the defendant, I would not exclude the drugs discovered on the
defendant’s body. The defendant consented to a search of his person, providing
Investigator Lutter with the consent needed to pull up the defendant’s shirt and see the
drugs taped to his body without resorting to a purportedly illegal arrest. I concede that
this case does not fit neatly within any of the currently recognized exceptions to the
exclusionary rule. However, I see no purpose in excluding the fruit of an invalid arrest
where, as here, the officer has the consent necessary to discover the evidence before
effecting the arrest but mistakenly arrests the defendant in the good faith belief that he
has probable cause to do so. Accordingly, I respectfully dissent from the reversal of
the defendant's conviction.

      A true copy.

             Attest:

                 CLERK, U.S. COURT OF APPEALS, EIGHTH CIRCUIT.


                                           -14-