Judges: Tinder
Filed: Oct. 17, 2013
Latest Update: Mar. 02, 2020
Summary: In the United States Court of Appeals For the Seventh Circuit _ No. 13-1710 UNITED STATES OF AMERICA, Plaintiff-Appellee, v. $304,980.00 IN UNITED STATES CURRENCY, et al., Defendants. APPEAL OF: RANDY DAVIS and DELORES DAVIS, Claimants. _ Appeal from the United States District Court for the Southern District of Illinois. No. 3:12-cv-00044-MJR-SCW — Michael J. Reagan, Judge. _ ARGUED SEPTEMBER 17, 2013 — DECIDED OCTOBER 17, 2013 _ Before WILLIAMS, SYKES, and TINDER, Circuit Judges. TINDER, Circui
Summary: In the United States Court of Appeals For the Seventh Circuit _ No. 13-1710 UNITED STATES OF AMERICA, Plaintiff-Appellee, v. $304,980.00 IN UNITED STATES CURRENCY, et al., Defendants. APPEAL OF: RANDY DAVIS and DELORES DAVIS, Claimants. _ Appeal from the United States District Court for the Southern District of Illinois. No. 3:12-cv-00044-MJR-SCW — Michael J. Reagan, Judge. _ ARGUED SEPTEMBER 17, 2013 — DECIDED OCTOBER 17, 2013 _ Before WILLIAMS, SYKES, and TINDER, Circuit Judges. TINDER, Circuit..
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In the
United States Court of Appeals
For the Seventh Circuit
____________________
No. 13‐1710
UNITED STATES OF AMERICA,
Plaintiff‐Appellee,
v.
$304,980.00 IN UNITED STATES CURRENCY, et al.,
Defendants.
APPEAL OF: RANDY DAVIS and DELORES DAVIS, Claimants.
____________________
Appeal from the United States District Court for the
Southern District of Illinois.
No. 3:12‐cv‐00044‐MJR‐SCW — Michael J. Reagan, Judge.
____________________
ARGUED SEPTEMBER 17, 2013 — DECIDED OCTOBER 17, 2013
____________________
Before WILLIAMS, SYKES, and TINDER, Circuit Judges.
TINDER, Circuit Judge. This is an action for civil forfeiture
of a tractor‐trailer and $304,980 in cash that was found hid‐
den in a secret compartment within it. The claimants, Randy
and Delores Davis, moved in the district court to suppress
the results of the search, arguing that it violated their Fourth
2 No. 13‐1710
Amendment rights because it was conducted without con‐
sent or probable cause. The district court denied the motion,
finding that Randy Davis consented to the search of the
truck. The Davises subsequently acknowledged that they
had no other defense to the forfeiture; thus, they agreed to
the entry of a stipulated forfeiture order subject to their right
to appeal the denial of their motion to suppress, an appeal
that is now before us. Because the district court did not clear‐
ly err in finding that Randy Davis consented to the search,
we affirm.
I. Background
On August 26, 2011, at around 2:15 in the afternoon,
Randy Davis was driving his Peterbilt tractor‐trailer west‐
bound on Interstate 70 through southern Illinois toward St.
Louis, Missouri. At the time, Davis was running his own
trucking company, and he shared ownership of the compa‐
ny’s only truck with his wife, Delores Davis. Like many trac‐
tor‐trailers, Davis’s truck had a sleeping compartment with a
recessed area in the floor designed to hold a mattress. But
unlike most tractor‐trailers, Davis’s truck had a hinged piece
of plywood installed over that recessed area, raising the mat‐
tress to floor level and creating a hidden compartment be‐
neath it. And on this particular afternoon, Davis was hiding
$304,980 in cash under his mattress.
Near mile marker twenty‐four, Davis passed an un‐
marked police vehicle that was parked in the median of the
interstate. Inside the vehicle were Kevin Thebeau and Derek
Hoelscher, city police officers who had been assigned to a
DEA drug interdiction task force. As part of their duties on
the task force, Officers Thebeau and Hoelscher would make
traffic stops in an effort to obtain probable cause or consent
No. 13‐1710 3
to search vehicles suspected of being used to transport drugs
or drug money.
After Davis passed their vehicle, the officers pulled out
into westbound traffic and followed. A few miles down the
road, they observed Davis following too closely to the trac‐
tor‐trailer in front of him, and they initiated a traffic stop.
Davis took the exit at mile marker twenty‐one and pulled
over on the right side of the exit ramp.
After Davis pulled over, the officers got out of their vehi‐
cle and approached the cab of his truck from the passenger
side. Officer Thebeau took the lead and spoke with Davis,
telling him the reason for the stop and asking for his driver’s
license, logbook, and bill of lading. Davis provided his driv‐
er’s license and logbook but explained that he did not have a
bill of lading because he had just dropped off a load in Van‐
dalia and was now empty. Thebeau advised Davis that the
officers would issue a warning for the traffic violation. Then,
the officers returned to their vehicle with the documentation
Davis provided.
Back in their vehicle, the officers examined Davis’s log‐
book and started to grow suspicious. They noticed that Da‐
vis had gone without work for much of July and August,
and they wondered how a one‐man operation could stay
afloat during that time. They also noticed that Davis had ex‐
pensive aftermarket parts on his truck, and they wondered
how he could afford them given his intermittent work
schedule. With their suspicion already aroused, the officers
contacted the El Paso Intelligence Center and learned that
Davis’s truck was on a “watch” because it had been used in
criminal activity in the past. Based on all of this information,
4 No. 13‐1710
the officers decided to seek Davis’s consent to search the
truck.
The officers again approached the truck’s cab from the
passenger side, and Officer Thebeau asked Davis to step
outside. Davis complied and walked around the front of the
truck to join the officers on the passenger side, using his re‐
mote to lock the truck on his way (out of habit). Thebeau
asked Davis if he was carrying any drugs or large sums of
money, and Davis responded that he was not. Thebeau then
asked Davis if he would consent to a search of his truck, and
Davis unequivocally gave his consent, saying something to
the effect of “yes, go ahead.”1
After obtaining Davis’s oral consent, Officer Thebeau
handed Davis a written consent form and asked him to read
it and sign it. Davis then attempted to open the passenger
door for Thebeau but discovered that it was locked. In re‐
sponse, Thebeau either said he would walk around to the
driver’s side or began to walk around, at which point Davis
used his remote to unlock the truck for him. Thebeau then
entered the driver’s door and began his search.
As Thebeau began searching, Davis began reading the
consent form, which stated that he would consent to the
search of his truck, “including luggage, containers, and con‐
1 In the suppression hearing, Davis denied giving oral consent to the
search. However, the district court found the officers’ testimony more
credible. Because it was not “physically impossible” for the officers to
have heard Davis give consent, or “impossible under the laws of nature”
for Davis to have given it at all, we defer to the district court’s credibility
determination. United States v. Bowlin, 534 F.3d 654, 662 (7th Cir. 2008)
(quoting United States v. Ortiz, 431 F.3d 1035, 1039 (7th Cir. 2005)).
No. 13‐1710 5
tents of all. This includes the removal of any suspicious pan‐
eling or other vehicle components, and the least intrusive
access to any constructed compartment used for the purpos‐
es of concealing contraband.”
Officer Hoelscher, who had remained outside, noticed
that Davis appeared to be struggling with the form. So,
Hoelscher asked him if he needed help understanding it.
Davis did not answer, but he appeared to grow agitated, and
he asked Hoelscher what the officers were looking for.
Hoelscher responded that they were looking for drugs or
large sums of money derived from drugs. At that point, Da‐
vis noticed Hoelscher’s city police department badge, and he
asked Hoelscher what the officers were doing out there.
Hoelscher explained that they were part of a DEA task force;
then he again asked Davis whether he needed any help un‐
derstanding the form. However, Davis remained unrespon‐
sive. Hoelscher noted that he could stop the search and get a
drug dog, but Davis still did not respond.
Wanting to be sure of Davis’s consent, Hoelscher walked
around to the driver’s side of the truck and told Thebeau to
stop the search because Davis would not sign the form.
Thebeau then stuck his head out of the truck and asked Da‐
vis whether they still had his consent to search. In response,
Davis grabbed the form from Hoelscher, wrote something
on it, and gave it back.2 Hoelscher glanced at the form, saw
2 In the suppression hearing, both officers testified that Davis said
“I’ll sign it” as he grabbed the form from Officer Hoelscher. However,
Davis testified that he simply grabbed the form, wrote on it, and gave it
back. The district court never made a specific finding on this issue. Thus,
we will assume that Davis said nothing when he grabbed the form.
6 No. 13‐1710
what appeared to him to be a signature, and put it in his
pocket.
Believing Davis had signed the form, Thebeau continued
his search. Meanwhile, Davis and Hoelscher went back
around to the passenger side of the truck and engaged in
casual conversation. Davis appeared to relax, and he told
Hoelscher that he assumed the officers knew he had been in
trouble before. In fact, Hoelscher was unaware of any prior
arrests, so he asked Davis to elaborate, at which point Davis
volunteered that he had previously been arrested for pos‐
sessing 200 pounds of marijuana.
Eventually, Thebeau noticed that Davis’s mattress was
sitting flush with the floor of the sleeping compartment, un‐
like the mattresses in trucks he had searched in the past. So,
he decided to look under the mattress, at which point he saw
the plywood lid that had been constructed over Davis’s se‐
cret compartment. Thebeau then used a screwdriver to pry
the lid up far enough to grip with his hand, opened the
compartment, and found the cash.
After Thebeau’s discovery, the officers took Davis into
custody and seized the truck and the cash. A few days later,
however, they examined the consent form more closely and
discovered that rather than signing his name on the signa‐
ture line, Davis had written the words “UNDER PROTEST,”
in a somewhat elaborate script, along with his initials.
Although the officers obtained a positive reaction to the
seized money from a drug dog, Davis was subsequently re‐
leased. However, the government kept the truck and the
cash and filed this action for civil forfeiture.
No. 13‐1710 7
II. Standing
As an initial matter, the government argues that even if
the district court erred in denying the Davises’ motion to
suppress, we should affirm because the Davises do not have
Article III standing to contest the forfeiture. Although the
government did not file a cross‐appeal, we will consider its
argument because “[t]he federal courts are under an inde‐
pendent obligation to examine their own jurisdiction, and
standing ‘is perhaps the most important of [the jurisdiction‐
al] doctrines.’”3 FW/PBS, Inc. v. City of Dallas, 493 U.S. 215,
231 (1990) (quoting Allen v. Wright, 468 U.S. 737, 750 (1984))
(second alteration in original). Moreover, we must address
this issue first because without a case or controversy under
Article III, we have no authority to proceed to the merits.
Steel Co. v. Citizens for a Better Envʹt, 523 U.S. 83, 94 (1998).
The government argues that because the Davises have
failed to prove their ownership of the seized cash, they do
3 The government argues that a cross‐appeal was unnecessary be‐
cause standing is an alternative ground to affirm the judgment. Howev‐
er, “[a]n appellee who wants, not that the judgment of the district court
be affirmed on an alternative ground, but that the judgment be changed,
[such as] from a dismissal without to a dismissal with prejudice, must
file a cross‐appeal.” Am. Bottom Conservancy v. U.S. Army Corps of Eng’rs,
650 F.3d 652, 661 (7th Cir. 2011). And even in the civil forfeiture context,
a dismissal for lack of standing is different from a judgment on the mer‐
its. See United States v. Funds in the Amount of $574,840, 719 F.3d 648, 651–
52 (7th Cir. 2013) (discussing the res judicata effect a ruling on standing
in a civil forfeiture case). Therefore, we decline to consider the govern‐
ment’s standing argument as an alternative ground to affirm the judg‐
ment in this case.
8 No. 13‐1710
not have Article III standing.4 However, to have standing, a
claimant need not “establish that a right of his has been in‐
fringed; that would conflate the issue of standing with the
merits of the suit.” Aurora Loan Servs., Inc. v. Craddieth, 442
F.3d 1018, 1024 (7th Cir. 2006). Instead, “he must have a col‐
orable claim to such a right.” Id. While it is true that the Da‐
vises have not proved their ownership of the cash (indeed,
they invoked the Fifth Amendment in response to the gov‐
ernment’s interrogatories on that subject), they do claim such
ownership, and the money was found in Randy Davis’s pos‐
session. This is sufficient to give them a colorable claim to
the money. See United States v. $148,840.00 in U.S. Currency,
521 F.3d 1268, 1273–78 (10th Cir. 2008) (a claim of ownership
coupled with possession was sufficient to establish standing
even though the claimant invoked the Fifth Amendment and
refused to explain his ownership interest). Therefore, the
Davises have Article III standing, and we turn to the sup‐
pression issue.
4 The government does not dispute the Davises’ ownership of the
truck, nor does it dispute that some of the cash could have come from
the Davises’ legitimate earnings. It merely maintains that their earnings
were insufficient to allow them to save $304,980 since their bankruptcy in
2003. If the Davises do own at least some of the cash, the question of how
much “has a damages flavor to it, which is a merits, not a standing, ques‐
tion.” Scanlan v. Eisenberg, 669 F.3d 838, 845 (7th Cir. 2012). But more
fundamentally, as discussed in this section, the Davises have standing to
contest the forfeiture of the cash regardless of whether they can prove
that they own any of it.
No. 13‐1710 9
III. Motion to suppress
The Fourth Amendment protects “[t]he right of the peo‐
ple to be secure in their persons, houses, papers, and effects,
against unreasonable searches and seizures … .” While the
Amendment “says nothing about suppressing evidence ob‐
tained in violation of this command,” Davis v. United States,
131 S. Ct. 2419, 2426 (2011), the Supreme Court has adopted
a prudential rule requiring such suppression in order to
“compel respect for the constitutional guaranty,” id. (quoting
Elkins v. United States, 364 U.S. 206, 217 (1960)). As the dis‐
trict court in this case noted, there is some debate as to
whether the common‐law exclusionary rule should apply in
civil‐forfeiture proceedings. See, e.g., United States v. Marroc‐
co, 578 F.3d 627, 642–43 (7th Cir. 2009) (Easterbrook, J., con‐
curring). However, Rule G(8)(a) of the Supplemental Rules
for Admiralty or Maritime Claims and Asset Forfeiture Ac‐
tions provides that “[i]f the defendant property was seized, a
party with standing to contest the lawfulness of the seizure
may move to suppress use of the property as evidence.” This
rule, like others promulgated pursuant to the Rules Enabling
Act, has the force of a statute. In re Dorner, 343 F.3d 910, 914
(7th Cir. 2003) (citing 28 U.S.C. § 2072(b)). Thus, regardless
of whether the common‐law exclusionary rule applies, we
must determine whether the district court should have
granted the Davises’ motion to suppress under Rule G(8)(a).
In reviewing a district court’s denial of a suppression
motion, “factual findings are reviewed for clear error, and
legal conclusions and the ultimate determination of reasona‐
bleness are subject to de novo review.” United States v. Stokes,
726 F.3d 880, 890 (7th Cir. 2013). “A factual finding is clearly
erroneous only if, after considering all the evidence, we can‐
10 No. 13‐1710
not avoid or ignore a definite and firm conviction that a mis‐
take has been made.” United States v. Jackson, 598 F.3d 340,
344–45 (7th Cir. 2010) (quoting United States v. Burnside, 588
F.3d 511, 517 (7th Cir. 2009)) (internal quotation marks omit‐
ted).
The Fourth Amendment prohibits only “unreasonable
searches and seizures.” Although a warrant is often required
to make a search reasonable, certain warrantless searches are
also reasonable, including those conducted with the sus‐
pect’s consent. Illinois v. Rodriguez, 497 U.S. 177, 183–84
(1990). However, not all consents are the same, and no con‐
sent is irrevocable. See Florida v. Jimeno, 500 U.S. 248, 252
(1991) (“A suspect may of course delimit as he chooses the
scope of the search to which he consents.”); United States v.
Jachimko, 19 F.3d 296, 299 (7th Cir. 1994) (consent may be
withdrawn). “Clearly a person may limit or withdraw his
consent to a search, and the police must honor such limita‐
tions.” United States v. Dyer, 784 F.2d 812, 816 (7th Cir. 1986).
Whether a suspect consented to a search is a question of
fact that we review for clear error. United States v. Williams,
209 F.3d 940, 942–43 (7th Cir. 2000). The consent inquiry fo‐
cuses on “what is reasonably apparent to a reasonable in‐
quiring officer” so as to further the deterrence rationale of
the exclusionary rule. United States v. Grap, 403 F.3d 439, 444
(7th Cir. 2005).
In this case, we have little difficulty concluding that Da‐
vis initially consented to the search of his truck. When Of‐
ficer Thebeau asked for his consent, Davis readily gave it,
saying something to the effect of “yes, go ahead.” Then, he
attempted to open the passenger door for Officer Thebeau,
only to find it locked. When Officer Thebeau decided to
No. 13‐1710 11
walk around to the driver’s side, Davis used his remote to
unlock the truck for him. Under these circumstances, a rea‐
sonable officer would have believed that Davis consented to
the search of his truck. Moreover, Davis does not contend
that his consent was involuntary. Therefore, the search was
reasonable and complied with the Fourth Amendment so
long as it remained within the scope of Davis’s general, oral
consent and so long as he did not subsequently limit that
scope or withdraw his consent altogether.
“Whether a search remains within the scope of consent
‘is a question of fact to be determined from the totality of all
the circumstances.’” United States v. Saucedo, 688 F.3d 863,
865 (7th Cir. 2012) (quoting Jackson, 598 F.3d at 348). “The
standard for measuring the scope of consent under the
Fourth Amendment is one of objective reasonableness and
asks what the typical reasonable person would have under‐
stood by the exchange between the law enforcement agent
and the person who gives consent.” Id. (quoting Jackson, 598
F.3d at 348).
“The scope of a search is generally defined by its ex‐
pressed object.” Id. (quoting Jimeno, 500 U.S. at 251). Consent
to a general search includes consent to search “anywhere
within the general area where the sought‐after item could be
concealed.” Id. at 866 (quoting Jackson, 598 F.3d at 348–49).
Moreover, “[w]hen a person is informed that an officer is
looking for drugs in his car and he gives consent without
explicit limitation, the consent permits law enforcement to
search inside compartments and containers within the car,
so long as the compartment or container can be opened
without causing damage.” Id. (quoting United States v. Calvo‐
Saucedo, 409 F. App’x 21, 24 (7th Cir. 2011)).
12 No. 13‐1710
In this case, just before asking for Davis’s consent to
search, Officer Thebeau asked Davis whether he was hauling
any drugs or large sums of money. Thus, Davis was aware
of what the officers were looking for from the beginning.
Moreover, during the search, Officer Hoelscher expressly
told Davis that the officers were looking for drugs or large
sums of money derived from drugs, and as discussed below,
Davis did not limit the scope of the search after Officer
Hoelscher told him what the officers were looking for. Given
the expressed object of the search and Davis’s general con‐
sent, the officers were permitted to look in any compart‐
ments where drugs or money could be found, so long as
they did not cause damage. And while Officer Thebeau used
a screwdriver to lift the plywood lid of Davis’s secret com‐
partment, there is no evidence that this caused any damage
to the lid or to Davis’s truck. Therefore, the search was with‐
in the scope of Davis’s general, oral consent, and the search
was reasonable so long as Davis did not subsequently with‐
draw or limit the scope of that consent.
Like the question whether consent was given at all, the
question whether the suspect subsequently withdrew or lim‐
ited the scope of his consent is a question of fact that we re‐
view for clear error. See United States v. Maldonado, 38 F.3d
936, 941–42 (7th Cir. 1994). In this case, Davis argues that by
writing “UNDER PROTEST” on the consent form, he with‐
drew or limited the scope of his oral consent.
With respect to scope, Davis’s argument is far from clear.
He seems to suggest that by rejecting the form he refused to
expand the scope of his oral consent to include hidden com‐
partments. However, as discussed above, his general, oral
consent already included hidden compartments, so such an
No. 13‐1710 13
expansion was unnecessary. He also seems to suggest that
by rejecting the form, he revoked his consent to search those
specific areas listed in the form that were also covered by his
general, oral consent. But for the reasons discussed below,
his conduct was insufficient to withdraw his consent either
generally or in relation to specific areas. Therefore, Davis
never limited the scope of his consent.
The government relies on case law from the Eighth Cir‐
cuit for the proposition that “[a] defendant must make an
unequivocal act or statement to indicate that consent is being
withdrawn.” United States v. Parker, 412 F.3d 1000, 1002 (8th
Cir. 2005). While our cases have not explicitly required as
much, they are consistent with this approach. See, e.g., United
States v. Hardin, 710 F.2d 1231, 1236–37 (7th Cir. 1983) (hold‐
ing that the defendant’s act of placing his hand over the of‐
ficer’s “was at best ambiguous, and given his general coop‐
erative attitude during the search, wholly ineffective to
communicate an intention to rescind or narrow his con‐
sent”).
Moreover, we find support for the rule in the Supreme
Court’s admonition that “the ultimate touchstone of the
Fourth Amendment is ‘reasonableness.’” Brigham City, Utah
v. Stuart, 547 U.S. 398, 403 (2006). If a suspect’s attempt to
withdraw consent is equivocal, “police officers may reason‐
ably continue their search in the premises entered pursuant
to the initial grant of authority.” United States v. McMullin,
576 F.3d 810, 815 (8th Cir. 2009). Put another way, police of‐
ficers do not act unreasonably by failing to halt their search
every time a consenting suspect equivocates.
In this case, Davis never unequivocally withdrew his
consent. Indeed, the very act he relies upon would have led
14 No. 13‐1710
a reasonable officer to believe that he was affirming, rather
than withdrawing, his consent. When asked whether he still
consented to the search, Davis grabbed the consent form
from Officer Hoelscher, wrote something on it, and gave it
back without saying a word. This act would have led an ob‐
jective observer to believe that Davis had signed the form
and affirmed his consent.
Davis argues that the officers chose the means by which
he could communicate his consent (i.e., through the consent
form); therefore, he should not have been required to object
to the search in any other way, and the officers were unrea‐
sonable in failing to closely scrutinize the form to ensure that
he had in fact signed it. However, the officers did not com‐
municate with Davis exclusively or even primarily in writ‐
ing. They asked him whether he consented, and Officer
Thebeau relied upon his oral consent and began the search
before Davis even read the form. Moreover, Officer
Hoelscher did look at the form, and seeing two words writ‐
ten on the signature line, believed Davis had signed it. We
have examined the form and find Officer Hoelscher’s belief
to be a reasonable one. An officer who was unfamiliar with
Davis’s signature and who had no reason to believe that Da‐
vis would have written anything but his signature on the
signature line could not reasonably have been expected to
do more.
Finally, we note that Davis’s conduct after he signed the
form was wholly consistent with his consent and incon‐
sistent with revocation or limitation of that consent. He en‐
gaged Officer Hoelscher in casual conversation and even
volunteered that he had been in trouble with the law in the
past. Thus, like the suspect in Hardin, Davis’s conduct “was
No. 13‐1710 15
at best ambiguous, and given his general cooperative atti‐
tude during the search, wholly ineffective to communicate
an intention to rescind or narrow his consent.” 710 F.2d at
1236–37.
IV. Conclusion
In sum, the district court did not clearly err in finding
that Randy Davis orally consented to the search of his truck,
that Davis never withdrew or limited the scope of that con‐
sent, and that the officers’ search remained within the scope
of that consent. Therefore, the district court properly denied
Appellants’ motion to suppress, and the judgment below is
AFFIRMED.