Federal Corner: An Attempt at Being Clever That Only Aided the Government – By F. R. Buck Files Jr.

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Interesting Fourth Amendment issues can occasionally be found in forfeiture cases; e.g., a panel of the United States Court of Appeals for the Seventh Circuit, in a forfeiture case, recently held that:

  • Ralph and Dolores Davis had colorable title to the seized cash that was found in possession of Mr. Davis, as required to have Article III standing;
  • Mr. Davis initially consented to the search of his truck verbally; and,
  • Mr. Davis did not make an unequivocal act or statement to indicate that he was withdrawing his prior verbal consent to search truck when he subsequently wrote “under pro­test” on a consent form.

U.S. v. $304,980.00 in U.S. Currency, ___F.3d___, 2013 WL 5645311 (7th Cir.2013) [Panel: Circuit Judges Williams, Sykes, and Tinder (authored the opinion)]

A Synopsis of the Facts

Randy Davis was a one-driver trucking firm. He and his wife, Dolores, owned a Peterbilt tractor-trailer that Davis was driving on Interstate 70 through southern Illinois toward St. Louis, Missouri. His only cargo was $304,980 in cash hidden beneath a plywood lid under a mattress in the sleeper area of the truck.

As bad luck would have it, two city police officers—Kevin Thebeau and Derek Hoelscher, who were assigned to a DEA drug interdiction task force—were also driving on that same portion of Interstate 70. When they observed a traffic offense, they would stop the driver in an effort to obtain probable cause or consent to search vehicles suspected of being used to transport drugs or drug money. When they observed Davis following too closely to the tractor-trailer in front of him, they initiated a traffic stop.

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 gave the officer his driver’s license and logbook but explained that he did not have a bill of lading because he had dropped off his load and was now empty. Thebeau told Davis he would issue a warning for the traffic violation and went back to his vehicle to talk to his partner.

The officers reviewed Davis’ logbook and determined that he had not worked for most of the previous two months. They wondered how Davis could afford to re-fitting his truck with expensive parts and—the icing on the cake—the officers contacted the DEA’s El Paso Intelligence Center and learned that Davis’ truck was on a “watch list” because it had been used in criminal activity in the past. Based on what they had learned, the officers decided to seek Davis’ consent to search his truck.

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 said something to the effect of “yes, go ahead.”

Thebeau entered the truck and began to search it. Davis began reading the consent form, which stated that he would consent to the search of his truck, “including luggage, containers, and contents of all. This includes the removal of any suspicious paneling or other vehicle components, and the least intrusive access to any constructed compartment used for the purposes of concealing contraband.”

Hoelscher noted that Davis appeared to be having difficulty with the form and asked if he needed help understanding it. Davis wanted to know what the officers were looking for and was told that they were looking for drugs or large sums of money derived from drugs. Hoelscher then told Thebeau to stop the search because Davis had not signed the form. Thebeau asked Davis if they still had his consent to search. Davis grabbed the form from Hoelscher, wrote something on it, and gave it back to Hoelscher.

Believing that Davis had signed the form, Thebeau continued his search. Meanwhile, Davis and Hoelscher went back around to the passenger side of the truck. 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 possessing 200 pounds of marijuana.

Using a screwdriver, Thebeau found the $304,980 beneath a plywood lid in the sleeper area of the truck. The officers then took Davis into custody and seized the truck and the cash. Only later did they look at the consent form and see that rather than signing his name on the signature line, Davis had written the words “UNDER PROTEST” in a somewhat elaborate script, along with his initials.

The government filed a forfeiture action against the Davises. In response, their attorney filed a motion to suppress, alleging an illegal search of the truck and seizure of the money. At the suppression hearing, Davis denied giving oral consent for the search. Judge Michael J. Reagan of the United States District Court for the Southern District of Illinois denied the motion to suppress and entered judgment in favor of the government. The Davises gave notice of appeal.

Judge Tindor’s opinion, affirming the judgment of the trial court, reads in part as follows:

The Standing Issue

[There is No Requirement to Prove Ownership]

The government argues that because the Davises have failed to prove their ownership of the seized cash, they do not have Article III standing. However, to have standing, a claimant need not “establish that a right of his has been infringed; 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 colorable claim to such a right.” Id. While it is true that the Davises have not proved their ownership of the cash (indeed, they invoked the Fifth Amendment in response to the government’s interrogatories on that subject), they do claim such ownership, and the money was found in Randy Davis’ possession. 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).

The Consent Issue

[The Fourth Amendment and Consent Searches]

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 suspect’s consent. Illinois v. Rodriguez, 497 U.S. 177, 183–84, 110 S.Ct. 2793, 111 L.Ed.2d 148 (1990). However, not all consents are the same, and no consent is irrevocable. See Florida v. Jimeno, 500 U.S. 248, 252, 111 S.Ct. 1801, 114 L.Ed.2d 297 (1991) (“A suspect may of course delimit as he chooses the scope of the search to which he consents.”);

[Davis Initially Consented to the Search]

In this case, we have little difficulty concluding that Davis initially consented to the search of his truck. When Officer 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 walk around to the driver’s side, Davis used his remote to unlock the truck for him. Under these circumstances, a reasonable 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’ general, oral consent and so long as he did not subsequently limit that scope or withdraw his consent altogether.

***

[The Scope of the Search]

“The scope of a search is generally defined by its expressed object.” Id. (quoting Jimeno, 500 U.S. at 251, 111 S.Ct. 1801). 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 Fed.Appx. 21, 24 (7th Cir.2011)).

[Davis Did Not Limit the Scope of Search]

In this case, just before asking for Davis’ 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’ general consent, the officers were permitted to look in any compartments 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’ secret compartment, there is no evidence that this caused any damage to the lid or to Davis’ truck. Therefore, the search was within the scope of Davis’ general, oral consent, and the search was reasonable so long as Davis did not subsequently withdraw or limit the scope of that consent.

The Withdrawal of the Consent to Search Issue

[Davis Never Limited the Scope of His Earlier Given Consent]

With respect to scope, Davis’ 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 compartments. However, as discussed above, his general, oral consent already included hidden compartments, so such an 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 Case Law from the Eighth Circuit and the Supreme Court]

The government relies on case law from the Eighth Circuit 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.

***

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, 126 S.Ct. 1943, 164 L.Ed.2d 650 (2006). If a suspect’s attempt to withdraw consent is equivocal, “police officers may reasonably 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 officers do not act unreasonably by failing to halt their search every time a consenting suspect equivocates.

[Davis’ Conduct Led the Officers to Believe That He Has Consented to the Search]

In this case, Davis never unequivocally withdrew his consent. Indeed, the very act he relies upon would have led 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 objective observer to believe that Davis had signed the form and affirmed his consent.

***

Moreover, Officer Hoelscher did look at the form, and seeing two words written 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’ signature and who had no reason to believe that Davis 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’ conduct after he signed the form was wholly consistent with his consent and inconsistent with revocation or limitation of that consent. He engaged Officer Hoelscher in casual conversation and even volunteered that he had been in trouble with the law in the past.

***

Davis’ conduct “was at best ambiguous, and given his general cooperative attitude during the search, wholly ineffective to communicate an intention to rescind or narrow his consent.”

My Thought

Even if Davis had initially refused to consent to the search, the outcome of this case might have been precisely the same if the officers had decided to attempt to go forward and develop the probable cause necessary to obtain a search warrant. They could have called for a drug dog. The drug dog might have alerted to the smell of marijuana in the truck or on the money. They might have obtained a search warrant and found the money—but they would have had to work for it. Mr. Davis simply made their job much easier.

TCDLA
TCDLA
F. R. Buck Files, Jr.
F. R. Buck Files, Jr.
Buck Files is a charter member and former director of the Texas Criminal Defense Lawyers Association. He is a member of TDCLA’s Hall of Fame and a former President of the State Bar of Texas. In May, 2016, TDCLA’s Board of Directors named Buck as the author transcendent of the Texas Criminal Defense Lawyers Association. He practices in Tyler with the law firm of Files Harrison, P.C., and can be reached at or (903) 595-3573.

Buck Files is a charter member and former director of the Texas Criminal Defense Lawyers Association. He is a member of TDCLA’s Hall of Fame and a former President of the State Bar of Texas. In May, 2016, TDCLA’s Board of Directors named Buck as the author transcendent of the Texas Criminal Defense Lawyers Association. He practices in Tyler with the law firm of Files Harrison, P.C., and can be reached at or (903) 595-3573.

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