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