CA8: Officer’s questions before consent essentially defined scope of consent

Probable cause was found: “The magistrate judge identified several ‘suspicious circumstances’ giving the troopers probable cause to believe drug contraband would be found in the minivan: (1) Braiske’s signs of nervousness, including shaking hands, labored breathing, a visible pulse in his neck, and the development of red blotches on his face; (2) Mayo’s extreme nervousness, including heavy breathing, sweating, a visible pulse in his neck, and avoidance of eye contact; (3) Braiske and Mayo’s contradictory statements about their travel history; (4) Braiske’s significant criminal history of drug related offenses; and (5) trooper Andrews’s discovery of two bindles consistent with drug packaging in plain view. The district court agreed and concluded that ‘the items recovered during the search are admissible under the automobile exception.’” This is supported by the evidence. United States v. Mayo, 627 F.3d 709 (8th Cir. 2010):

In United States v. Ferrer-Montoya, we held that when a defendant gives his consent to search a vehicle, officers may “search containers within that car which might bear drugs, probe underneath the vehicle, and open compartments that appear to be false, or puncture such compartments in a minimally intrusive manner.” 483 F.3d 565, 568 (8th Cir. 2007) (per curiam) (citations omitted). Though Braiske initially only consented to a “real quick” search of the minivan, he then clarified his answer by telling Andrews that, “yes,” he could “go ahead” and search the minivan. As we held in Ferrer-Montoya, we conclude that a “typical reasonable person” would have understood Andrews to be asking to search the entire minivan for drugs, including behind the door’s interior panels, and that Braiske’s answer authorized such a search. Because Andrews and his colleagues opened those panels in a minimally intrusive manner and because Braiske at no time objected or attempted to withdraw his consent, we conclude that the district court did not clearly err in finding that the officers’ search of the minivan did not exceed the scope of Braiske’s consent.