United States District Court, D. Nebraska
M. Gerrard, Chief United States District Judge
matter is before the Court on defendants, Nelson Nicolas
Nunez-Acosta's and Felipe Genao Minaya's, objections
(filing 71; filing 72) to the Findings and Recommendation and
Order (filing 68) of the Magistrate Judge, recommending that
the defendants' Motions to Suppress (filing 46; filing
50) be denied. The Court has conducted a de novo review of
the motion to suppress, pursuant to 28 U.S.C. §
636(b)(1). The Court concurs in the Magistrate Judge's
factual findings, analysis, and conclusions of law.
See filing 68. The Court therefore finds the
defendant's objection to be without merit, and will adopt
the Magistrate Judge's findings and recommendation.
the Court rejects the defendants' contention that the
Magistrate Judge erred in two respects: (1) by concluding the
defendants' voluntarily consented to the search, and (2)
by finding that Officer Mortensen did not exceed the scope of
the defendants' consent by using the tools he recovered
in the truck's bed to pry up the plastic or metal panels.
Filing 71 at 14-15; filing 72 at 14-15. With respect to the
defendants' first contention, the Court determines that
the defendant's voluntarily consented to the search.
See United States v. Chaidez, 906 F.2d 377, 380 (8th
Cir. 1990); United States v. Rogers, 661 F.3d 991,
994 (8th Cir. 2011). Indeed, as the Magistrate Judge
correctly pointed out, there are several factors in the
record that weigh against finding the lack of voluntary
consent, including the verbal consent provided by both
defendants, the fact that Nunez-Acosta provided additional
nonverbal consent by unlocking and opening the truck's
trailer, and the failure of either defendant to object to the
search or revoke their consent despite their ability to do
so. See filing 68 at 14.
brings the Court to the defendant's second argument--that
even if consent was given, Officer Mortensen exceeded the
scope of that consent. Under the Fourth Amendment, the scope
of consent is measured by objective reasonableness, "an
inquiry that asks what the typical reasonable person [would]
have understood by the exchange between the officer and the
suspect." United States v. Zamora-Garcia, 831
F.3d 979, 983 (8th Cir. 2016) (internal quotations omitted).
But general consent to a search does not give law enforcement
officers license to destroy property. Zamora-Garcia,
831 F.3d at 983. "Cutting or destroying an object during
a search requires either explicit consent for the destructive
search or articulable suspicion that supports a finding that
probable cause exists to do the destructive search."
Id. Probable cause exists "when the facts
available to [police] would warrant a person of reasonable
caution in the belief that contraband or evidence of a crime
is present." Id. This is a practical and
common-sensical standard based, again, on the totality of the
circumstances. United States v. Guevara, 731 F.3d
824, 830 (8th Cir. 2013). All that is required is the kind of
fair probability on which reasonable and prudent people, not
legal technicians, act. Id.
as the Magistrate Judge noted, there are reasonable grounds
for the expanded search. Seefiling 68 at 15. Officer
Mortensen initially observed the presence of tools in the cab
and he observed that the front of the trailer had what
appeared to be fresh paneling, fresh caulk, new rivets and
screws, and 18-metal shavings in the track work of the
trailer. Filing 67 at 38-40. Based on his experience, Officer
Mortensen testified, such evidence would indicate that there
had been manipulation or mechanical changes made to the
structure of vehicles. Filing 67 at 40-42. And that is
significant, Mortensen said, because it would suggest that a
compartment had recently been accessed or put into
place--consistent with narcotics smuggling. Filing 67 at 42.
the Court concludes that, based on the totality of the
circumstances, there was probable cause for Officer Mortensen
to believe that they would find drugs in the trailer.
Guevara, 731 F.3d at 830; see also United States
v. Chaidez, 906 F.3d 377, 383-84 (8th Cir. 1990)
(finding a warrantless search may be extended beyond the
scope of the consent when the officer completing a vehicle
search noticed a plastic back seat covering was torn, missing
or loose screws along the side panels and rear seat, and the
rear seat cushion in an abnormal position). So, the
defendants' objections on those grounds are overruled.
Court will therefore adopt the Findings and Recommendation.
Magistrate Judge's Findings and Recommendation and Order
(filing 68) is adopted.
Nunez-Acosta's objection (filing 71) is overruled.
Minaya's objection (filing 72) is overruled.
Nunez-Acosta's Motion to Suppress ...