* The Honorable Richard Mills, United States DistrictJudge for the Central

District of Illinois, sitting by designation. 

## F I L E D United States Court of Appeals Tenth Circuit 

### DEC 15 2000 

### PATRICK FISHER Clerk PUBLISH
UNITED STATES COURT OF APPEALS

TENTH CIRCUIT

UNITED STATES OF AMERICA,

Plaintiff - Appellee,

v. No. 99-2235 DAVID BLAKE OSAGE,

Defendant - Appellant.

APPEAL FROM THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF NEW MEXICO (D.C. NO. CR-98-552-BB)
Stuart Southerland, Tulsa, Oklahoma, for Appellant. David N. Williams, Assistant United States Attorney(John J. Kelly, United States Attorney, and J. Miles Hanisee, Assistant United St ates Attorney, on the brief), Albuquerque, New Mexico, for Appellee.

Before LUCERO and ANDERSON , Circuit Judges, and MILLS, * District Judge.

ANDERSON , Circuit Judge.-2-

David Blake Osage appeals his conviction on one cou nt of possession with intent to distribute one kilogram or more of methamphetamine, in violation of 21 U.S.C. § 841(a)(1), (b)(1)(A). Mr. Osage moved unsuccessfully to suppress the introduction of the methamphetamine and subsequ ently pled guilty to the indictment, reserving his right to appeal the suppr ession ruling. On appeal, he challenges the district court’s finding that he con sented to the search that resulted in seizure of the methamphetamine. Because we conc lude that the search exceeded the scope of the consent given, we reverse and remand this case.

BACKGROUND On June 4, 1998, Task Force Officer Sam Candelaria of the New Mexico State Police notified Task Force Officer Jonathan S alazar that Mr. Osage would be traveling through Albuquerque on an Amtrak trainthat ran between Los Angeles and Chicago. Mr. Osage had paid cash for p assage in a sleeping car aboard the train shortly before it left California. Officer Salazar boarded the train in Albuquerque wi th another officer, both of whom were in plain clothes. Officer Salazar con fronted Mr. Osage in a passageway in the sleeping car, identified himself as a police officer, and asked to speak to him. The officer asked Mr. Osage about hi s destination and requested to see his tickets. Mr. Osage told Officer Salazar th at his tickets were in a bag in his-3-

room. The officer followed Mr. Osage to his room, where Mr. Osage produced the tickets. Officer Salazar then asked Mr. Osage about his lugg age, and Mr. Osage identified two suitcases. One of the suitcases, a black bag, was closed and locked. The officer asked for permission to searchthe bags. Mr. Osage responded, “yeah, I guess.” Appellant’s App. at 31 1. Officer Salazar asked again whether it would be okay to search the bags. Mr. O sage did not respond verbally, but nodded, gestured upward with his palms, and poi nted toward the black bag. Mr. Osage produced a key and opened the black bag. Inside, Officer Salazar found plastic grocery bags containing four 28-ounce cans labeled “tamales in gravy.” The officer picked up one of t he cans and noticed that the label appeared to have been tampered with, perhaps re-glued. When he shook the can, he noticed that it did not feel and sound like it contained tamales in liquid, but instead felt like a container of salt would fee l when shaken. He then took a Leatherman tool off his belt, opened the can, and d iscovered a plastic bag containing methamphetamine. The district court denied Mr. Osage’s motion to sup press on the ground that his consent to search was freely and voluntarily gi ven, and Mr. Osage never limited its scope to exclude opening the tamales ca n. Specifically, the court stated, “[w]hile the Court was extremely skeptical that the extent of the consent-4-

extended to physically opening the tamale cans, [Mr . Osage] stood by and watched without demur while the agent took out a ca n opener and split the can lid. If [Mr. Osage] had questioned this procedure, the outcome of this motion may well have been different.” Order at 2, Appellant’s App. at 91 (citing United States v. Kim , 27 F.3d 947 (3d Cir. 1994); United States v. Torres , 663 F.2d 1019 (10th Cir. 1981), cert. denied , 456 U.S. 973 (1982); United States v. Pena , 920 F.2d 1509, 1515 (10th Cir. 1990)).

DISCUSSION When we review the denial of a motion to suppress, we must accept the district court’s factual findings unless they are clearly erroneous. United States v. Wald , 216 F.3d 1222, 1225 (10th Cir. 2000). “The distr ict court’s determination of reasonableness under the Fourth Amendment, howev er, is reviewed de novo.” Id.

I. Validity of Consent Mr. Osage argues that consent solicited by a police officer is involuntary per se and he argues that the particular consent gi ven in this case was not freely and voluntarily given. He makes a number of subsid iary arguments. Because we conclude that the district court erred in denying h is motion to suppress based-5-

upon the scope of the consent, we need not address these other arguments. We assume that Mr. Osage’s consent was validly given.

II. Scope of Consent Mr. Osage argues that Officer Salazar’s actions in opening the tamale can exceeded the scope of the search. When law enforce ment officers rely upon consent as the basis for a warrantless search, the scope of the consent determines the permissible scope of the search. See Florida v. Jimeno , 500 U.S. 248, 251-52 (1991). The scope of consent is measured by object ive reasonableness: “what would the typical reasonable person have understoodby the exchange between the officer and the suspect?” Id. at 251. “We view the evidence in the light most favorable t o the government and must uphold a district court’s finding that a searc h is within the boundaries of the consent unless it is clearly erroneous.” United States v. Pena , 143 F.3d 1363, 1368 (10th Cir. 1998). While we have stated that adefendant’s “failure to object to the . . . search of [a particular area] ‘may be considered an indication that the search was within the scope of the consent,’” id. (quoting United States v. Espinosa , 782 F.2d 888, 892 (10th Cir. 1986)), this case pr esents a more narrow issue: whether Mr. Osage’s failure to object to a search of a sealed can permitted1 The government has never argued that Officer Salazar had articulable

suspicion to briefly detain the cans for further in vestigation or probable cause to seek a warrant. Officer Salazar has never claimed he did. At oral argument of this appeal, the government specifically disavowed any reliance upon that ground. Thus, this case involves only the validity and scop e of Mr. Osage’s consent to the search of the cans. -6- the officer, in the course of conducting his search , to destroy the can or render it completely useless for its intended function. 1 We conclude that it does not. The Supreme Court in Jimeno held that “it was objectively reasonable for the police to conclude that the general consent to search [defendant’s] car included consent to search containers within that c ar which might bear drugs.” Jimeno , 500 U.S. at 251. The Court accordingly upheld th e opening and search of a brown paper bag inside the car. However, the Cou rt also stated, “[i]t is very likely unreasonable to think that a suspect, by con senting to the search of his trunk, has agreed to the breaking open of a locked briefcase within the trunk.” Id.
at 251-52. We have not directly addressed the issue of whethera police search which destroys or renders completely useless the item searched exceeds the scope of any consent given for the search. However, we have hinted that a search could be “so invasive or destructive” as to go beyond the scope of the search consented to. See United States v. Santurio , 29 F.3d 550, 553 (10th Cir. 1994) (noting that a “search was not so invasive as to exceed the scope of defen dant’s consent to the search”-7-

where the officer “did not ‘tear up’ the van or ent er the compartment” until a dog alerted on the compartment). Other courts have rea ched the same conclusion.
See , e.g. , United States v. Torres , 32 F.3d 225, 231-32 (7th Cir. 1994) (“We agree that ‘general permission to search does not include permission to inflict intentional damage to the places or things to be searched.’”) (quoting United States v. Martinez , 949 F.2d 1117, 1119 (11th Cir. 1992)); United States v. Strickland , 902 F.2d 937, 941-42 (11th Cir. 1990) (holding th at a general consent to search a car does not extend to the “intentional infliction of damage to the vehicle or the property contained within it”); State v. Garcia , 986 P.2d 491, 495 (N.M. Ct. App. 1999) (holding that “[d]efendant’s c onsent to permit the officers to ‘look at’ her vehicle could not reasonably be in terpreted to encompass drilling into the vehicle.”), cert. granted , 990 P.2d 824 (N.M. Aug. 11, 1999). The district court relied upon United States v. Kim , 27 F.3d 947 (3d Cir. 1994), United States v. Torres , 663 F.2d 1019 (10th Cir. 1981) and United States
v. Pena , 920 F.2d 1509 (10th Cir. 1990), in support of its conclusion that Mr. Osage’s silence while he watched Officer Salazar op en the tamales can indicated Mr. Osage’s consent to the search of the can. The government places great reliance upon Kim in this appeal. In Kim , officers aboard an Amtrak train received consent to search a handbag accompanying the defendant in his train roomette. One of the officers found inside the bag six cans of “Naturade All--8-

Natural Vegetable Protein” which “appeared to be fa ctory-sealed cans with factory lids which were intact.” Kim , 27 F.3d at 950. The officer then “opened one of the cans” and discovered methamphetamine inside. Id. The Third Circuit upheld the search of the can as w ithin the scope of the permission granted. It relied upon Jimeno for its conclusion that “when one gives general permission to search for drugs in a confine d area, that permission extends to any items within that area that a reasonable per son would believe to contain drugs.” Id. at 956. It found no meaningful distinction betwee n the brown paper bag in Jimeno and the sealed cans in the case before it. Moreov er, while acknowledging that the Court in Jimeno had stated that a search of a locked suitcase in a vehicle would not be within the scope of a permissive search of the vehicle, the Kim court summarily concluded “cans such as those foun d in the case sub judice are not similar to locked briefcases.” Id. at 957. We are not persuaded that Kim requires us to reach the same conclusion in this case. First, while the Kim court evidently determined that a sealed can is more like a brown paper bag than a locked briefcase , it provides no explanation for that conclusion. Additionally, the court did n ot consider whether the can was destroyed or rendered useless after being opened. Indeed, the court may have assumed that it was not so damaged, because it reli ed upon and quoted the-9-

following reasoning from United States v. Springs , 936 F.2d 1330, 1334-35 (D.C. Cir. 1991) in support of its holding: the evidence supports a view that the opening of th e baby powder container did not depend upon possession of a key, knowledge of a combination, or anything other than merely removing its lid. Neither did the fact of its opening it render it useless, a nymore than the opening of the folds destroyed the usefulness of th e paper bag in Jimeno

. (emphasis added). We conclude that the opening of a sealed can, thereby rendering it useless and incapable of performing it s designated function, is more like breaking open a locked briefcase than opening the folds of a paper bag. We acknowledge that the Supreme Court and this court have previously stated that a general consent to search a particula r area is reasonably understood to extend to a search of containers within that are a that could contain contraband, absent some indication by the suspect that he wishe s to terminate or limit the search. See Jimeno , 500 U.S. at 252 (“[I]f [a suspect’s] consent woul d reasonably be understood to extend to a particular container, the Fourth Amendment provides no grounds for requiring a more explicit authorization.”); United States v. Gordon , 173 F.3d 761, 766 (10th Cir.) (“We consistently and repeatedly have held a defendant’s failure to limit the scope of a gener al authorization to search, and failure to object when the search exceeds what he l ater claims was a more limited consent, is an indication the search was within the scope of consent.”), cert. denied , 120 S. Ct. 205 (1999). However, we do not read that authority to permit2 We do not read our prior cases in Torres and Pena , upon which the district

court relied, to compel a different result in this case. In Torres , a defendant gave police permission to search a car. In conducting the search, the officers “pull[ed] out an ashtray in the side of the door,” and “remov ed the air-vent cover in the side of the door,” where they found contraband. Torres , 663 F.2d at 1021. We held that search was “within the bounds of the actual co nsent given.” Id. at 1027. Similarly, in Pena , after receiving permission to search a vehicle, t he police officer “got a screwdriver . . . and removed the re ar quarter panel vent” of the vehicle, where he discovered contraband. Pena , 920 F.2d at 1512. The defendant at no time objected to the search. We held that th e search “was conducted within the general scope of the permission granted.” Id. at 1515. Neither Penanor Torres involved the actual destruction of the item search ed, as occurred in this case. Other cases in our circuit have permitted some “dis mantling” of an item searched, but none have permitted complete and utte r destruction or incapacitation of an item or container. See , e.g. , Pena , 143 F.3d at 1368 (holding that consent to search motel room included “search into the area above the bathroom ceiling” in the face of no objection by de fendant); United States v. McRae , 81 F.3d 1528, 1537-38 (10th Cir. 1996) (stating that consent to search car trunk permitted officer to lift crinkled carpet are a in the face of no objection by defendant); Santurio , 29 F.3d at 552-53 (holding that consent to searchinterior of car included removal of screws from strip holding d own carpeting). -10- the destruction of such containers. 2 We therefore hold that, before an officer may actually destroy or render completely useless a container which would otherwise be within the scope of a permissive search, the off icer must obtain explicit authorization, or have some other, lawful, basis up on which to proceed. For the foregoing reasons, the district court’s dec ision denying suppression of the methamphetamine found in the tamales cans is REVERSED and the case is REMANDED for further proceedings consistent herewith.