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           IN THE UNITED STATES COURT OF APPEALS
                    FOR THE FIFTH CIRCUIT
                                                                             United States Court of Appeals
                                                                                      Fifth Circuit
                                      No. 16-40418                                  FILED
                                                                                June 15, 2017

UNITED STATES OF AMERICA,                                                      Lyle W. Cayce
                                                                                    Clerk
              Plaintiff - Appellee

v.

ALEXIS GONZALEZ-BADILLO,

              Defendant - Appellant




                   Appeal from the United States District Court
                        for the Southern District of Texas
                              USDC No. 5:15-CR-399


Before REAVLEY, ELROD, and GRAVES, Circuit Judges.
PER CURIAM: *
       Appellant Alexis Gonzalez-Badillo appeals the district court’s denial of
his motion to suppress evidence. He contends that a Laredo police officer
exceeded the scope of his consent when the officer, while searching a travel
bag, opened the sole of a boot to find illegal drugs. Because Gonzalez-Badillo’s
consent extended to the boot sole, we AFFIRM the district court’s judgment.




       * Pursuant to 5TH CIR. R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH
CIR. R. 47.5.4.
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                                 No. 16-40418
                               BACKGROUND
      Police searched Gonzalez-Badillo’s boot sole as part of a criminal
interdiction effort at the Americanos Bus Station in Laredo, Texas on April 10,
2015. Gonzalez-Badillo had been in line to board a bus to Houston when he
made several “strange” comments about his itinerary to Laredo police officer
Rogelio Nevarez. Officer Nevarez subsequently asked and received permission
to search Gonzalez-Badillo’s travel bag. Before searching the bag, Officer
Nevarez took Gonzalez-Badillo’s California identification card, apparently
keeping it throughout the encounter. He then informed Gonzalez-Badillo that
he was looking for anything illegal traveling through the bus station.
      The magistrate judge’s report and recommendations describe the
specifics of the search:
            As soon as Officer Nevarez opened the bag, he smelled a
            strong chemical odor that he recognized as a masking agent
            used in drug smuggling. Officer Nevarez further observed a
            pair of used work boots inside of translucent plastic shopping
            bags. When Officer Nevarez grasped the bags containing the
            boots, he could feel that the soles of the boots were lumpy.
            Officer Nevarez compared it to the feeling of soles full of sand
            instead of the normal hard soles of work boots. Officer
            Nevarez further testified that he had felt boots like this
            before that were being used to smuggle drugs and had seen
            this method of drug smuggling during trainings. At this
            point, Officer Nevarez informed Defendant that he was “99%
            sure” that there were drugs in the boots and put the boots
            up for Defendant to smell them. Officer Nevarez testified
            that Defendant then began sweating more and made a
            surprising face.

            When Officer Nevarez removed the boots from the plastic
            bags, he observed a small opening on the side of one of the
            boots where it appeared that the sole wasn’t glued all the
            way shut. Officer Nevarez could see plastic inside the sole of
            the boot by manipulating the boot to look through the slit in
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                                 No. 16-40418
            the side of the sole without increasing the size of the opening.
            At that point, Officer Nevarez used his fingers to pull open
            the boot from this opening, which revealed a plastic bag
            containing a brown rocky substance, later confirmed to be
            heroin. Defendant was then placed under arrest and read his
            Miranda rights.

Gonzalez-Badillo initially invoked his constitutional right to remain silent. But
he later agreed to make inculpatory statements, first to Laredo police, and then
to Drug Enforcement Administration (“DEA”) agents. While in DEA custody,
Gonzalez-Badillo also signed written waivers of his rights and provided a
written statement.
      Gonzalez-Badillo subsequently moved to suppress all physical evidence
seized by police and statements made while in custody. The magistrate judge
held a suppression hearing on July 6, 2015. He recommended that the district
court deny Gonzalez-Badillo’s motion to suppress the physical evidence, but
grant it regarding the inculpatory statements. After independently reviewing
the facts of the case and relevant case law, the district court adopted the
magistrate judge’s recommendation on January 15, 2016. Gonzalez-Badillo
timely appeals from the district court’s judgment.


                          STANDARD OF REVIEW
      “When we review a district court’s denial of a motion to suppress, we
view the facts in the light most favorable to the prevailing party, accepting the
district court’s factual findings unless clearly erroneous and considering all
questions of law de novo.” United States v. Menchaca-Castruita, 587 F.3d 283,
289 (5th Cir. 2009).




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                                  No. 16-40418
                                 DISCUSSION
      Gonzalez-Badillo claims that the district court erred when it denied his
motion to suppress evidence found in the boot sole. First, he argues that his
consent to search the travel bag did not extend to a search of the boot sole.
Second, he asserts that no other exceptions to the Fourth Amendment’s
warrant requirement apply here. Because we find that Gonzalez-Badillo
consented to the search, we need not address his other arguments.
      “A search conducted pursuant to consent is one of the well-settled
exceptions to the Fourth Amendment’s warrant requirement.” United States v.
Tomkins, 130 F.3d 117, 121 (5th Cir. 1997). “The standard for measuring the
scope of a suspect’s consent under the Fourth Amendment is that of ‘objective’
reasonableness—what would the typical reasonable person have understood
by the exchange between the officer and the suspect?” Florida v. Jimeno, 500
U.S. 248, 251 (1991).
      As stated above, Gonzalez-Badillo does not contest that he consented to
the search of his travel bag. Instead, he argues that Officer Nevarez’s search
of the boot sole exceeded the scope of his initial consent. To determine the scope
of consent, the following factors inform our analysis: First, “a reasonable
person would have understood [his] consent for the search of his luggage to
include permission to search any items inside his luggage which might
reasonably contain drugs.” United States v. Maldonado, 38 F.3d 936, 940 (7th
Cir. 1994). For example, in Maldonado, the Seventh Circuit concluded that the
scope of the defendant’s consent extended to a closed juicer box that was taped
shut, even though “Maldonado testified that he told Agent Boertlein that he
did not want to open the juicer boxes because the items inside were gift




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                                       No. 16-40418
wrapped.” 1 Id. at 938. The court reasoned that Maldonado should have
expected drug enforcement officers would open the boxes because they told him
that “they were looking for individuals traveling with large quantities of illegal
drugs.” Id. at 940. Furthermore, “[t]he juicer boxes found in Maldonado’s
luggage had been repackaged and closed with tape, and such boxes may be
thought by a reasonable person to contain drugs.” Id.
       Similarly, Officer Nevarez explicitly informed Gonzalez-Badillo that he
was looking for anything illegal traveling through the bus station and asked
for consent to search the bag. See Jimeno, 500 U.S. at 251 (“The scope of a
search is generally defined by its expressed object.”). In addition, Officer
Nevarez reasonably concluded that the boots were inherently suspicious: (1)
Gonzalez-Badillo’s bag and boots smelled of drug-masking agent; (2) the boots
were unlike normal boots: the soles were “lumpy” as if they were “full of sand
instead of the normal hard soles of work boots;” (3) the boot soles were already
damaged and had “plastic” clearly visible inside; and (4) similar boots had been
used as vehicles for drug smuggling. Furthermore, given that Officer Nevarez




       1The    dissent argues that we “attempt[] to downplay the significance of the officer’s
testimony in Maldonado that the suspect consented to the search of his bag” even though
“the Seventh Circuit’s decision expressly relied on” the testimony. However, counter the
dissent’s argument, the officer’s testimony in Maldonado did not play a critical role in the
Seventh Circuit’s analysis. While it noted that “the district court never discredited [the
officer’s] testimony,” it based its holding on “all the surrounding circumstances” including the
district court’s finding that “Maldonado did not withdraw his consent, nor did he limit the
scope of his consent in the sense of refusing to allow Agent Boertlein to look inside the juicer
boxes.” See Maldonado, 38 F.3d at 940-41. Furthermore, the Seventh Circuit stated that
“[d]etermining the parameters of a consensual search is an issue of fact that must be distilled
from the totality of the circumstances surrounding the search; moreover, the resolution of
such factual questions is entrusted to the district court and will not be lightly overturned on
appeal.” Id. at 941. The district court acknowledged that Maldonado disputed the officer’s
testimony and “made no explicit determination as to which testimony it found more
credible[.]” Id. at 938.
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                                       No. 16-40418
explicitly informed Gonzalez-Badillo that he believed the boots contained
drugs and “put the boots up for [him] to smell” before opening the sole,
Gonzalez-Badillo “should have expected that [Officer Nevarez] would examine
the[ir] contents.” See Maldonado, 38 F.3d at 940 (quoting United States v.
Berke, 930 F.2d 1219, 1223 (7th Cir. 1991)).
       Second, “courts can look at the defendant’s conduct to help determine the
scope of a consensual search.” Id. For example, “[a] failure to object to the
breadth of the search is properly considered an indication that the search was
within the scope of the initial consent.” United States v. Mendoza-Gonzalez,
318 F.3d 663, 670 (5th Cir. 2003). Here, we find that Gonzalez-Badillo’s
conduct during the search suggests that the scope of his consent extended to
the boot sole. Importantly, Gonzalez-Badillo did not revoke or limit his consent
to search his bag, even when Officer Nevarez indicated that he believed the
boots contained drugs and offered them to Gonzalez-Badillo to smell. Instead,
“Defendant . . . began sweating more and made a surprising face.” Gonzalez-
Badillo also did not limit the search as Officer Nevarez continued to examine
the boots, eventually using his fingers to pull open the sole from the already
present hole. 2 Id.
       Gonzalez-Badillo correctly points out that, although a general consent to
search encompasses unlocked containers, locked containers require special


       2 The dissent argues that “Gonzalez-Badillo’s failure to object when Officer Nevarez
began prying the sole from the boot is of little probative value” because “[a]ll parties agree
that the search was within the scope of consent up until the point of separating the sole from
the boot” and “[t]here is no indication that Gonzalez-Badillo had any meaningful opportunity
to object between the time Officer Nevarez was looking through the slip and when he
separated the sole from the boot.” We disagree. When Officer Nevarez informed Gonzalez-
Badillo that he believed the boots contained drugs, Gonzalez-Badillo was clearly on notice
that Officer Nevarez intended to search them. See Maldonado, 38 F.3d at 940. Consequently,
Gonzalez-Badillo had the opportunity to limit his consent at any point between the time when
Officer Nevarez made his suspicions known and when he actually opened the sole.
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                                 No. 16-40418
consent or a warrant. See Jimeno, 500 U.S. at 251-52 (“It is very likely
unreasonable to think that a suspect, by consenting to the search of his trunk,
has agreed to the breaking open of a locked briefcase within the trunk . . . .”).
He also claims that this case is very similar to United States v. Osage, 235 F.3d
518, 520 (10th Cir. 2000), where the Tenth Circuit found that searching inside
a sealed can of tamales exceeded the scope of the defendant’s consent to search
his luggage. In that case, the court “conclude[d] that the opening of a sealed
can, thereby rendering it useless and incapable of performing its designated
function, is more like breaking open a locked briefcase than opening the folds
of a paper bag.” Id. at 521. It also stated: “[B]efore an officer may actually
destroy or render completely useless a container which would otherwise be
within the scope of a permissive search, the officer must obtain explicit
authorization, or have some other, lawful, basis upon which to proceed.” Id. at
522. Analogizing to Osage, Gonzalez-Badillo suggests that Officer Nevarez’s
search of the boot sole was “more like breaking open a locked briefcase” because
he had to pull open the sole to recover the drugs inside. Id. at 521.
      However, Gonzalez-Badillo’s argument is not persuasive. First, Osage is
not binding authority, and furthermore, the facts there are distinguishable
from those here. Unlike in Osage, the record does not show that Officer
Nevarez “destroy[ed]” the already-damaged boots or rendered them any less
useful than they had been before the sole was pulled open from a pre-existing
hole. Id. at 520. Moreover, we are not persuaded that Gonzalez-Badillo’s boot
should be considered akin to a locked container simply because Officer Nevarez
opened up the boot sole to recover drugs. Here, Officer Nevarez’s actions
inflicted minimal damage on the boot, the sole of which had previously been
pried open and glued down to insert drugs. Compare United States v. Marquez,
337 F.3d 1203, 1209 (10th Cir. 2003) (stating that [i]f damage to the
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                                  No. 16-40418
compartment did occur” as the result of officers’ prying open a nailed-down
plywood covering, “it was de minimis in nature”), with United States v. Ibarra,
965 F.2d 1354, (5th Cir. 1992) (en banc) (7-7 decision) (“We would hold that a
typical reasonable person would not have interpreted Chambers’ consent to
extend to breaking the boards securing the attic entrance.”), and United States
v. Strickland, 902 F.3d 937, 942 (11th Cir. 1990) (“[I]t is difficult to conceive of
any circumstance in which an individual would voluntarily consent to have the
spare tire of their automobile slashed.”). Given that Gonzalez-Badillo’s boot
was not akin to a locked container, the district court did not err. See Jimeno,
500 U.S. at 251-52.


                                 CONCLUSION
         For the reasons stated above, we AFFIRM the judgment of the district
court.




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                                       No. 16-40418
JENNIFER WALKER ELROD, Circuit Judge, dissenting:
       The Fourth Amendment enshrines our Constitution’s commitment to
“protect liberty and privacy from arbitrary and oppressive interference by
government officials.” United States v. Ortiz, 422 U.S. 891, 895 (1975). Our
Founders knew that “[u]ncontrolled search and seizure is one of the first and
most effective weapons in the arsenal of every arbitrary government,” and
“[a]mong deprivations of rights, none is so effective in cowing a population,
crushing the spirit of the individual and putting terror in every heart” as
unreasonable government intrusion into individual privacy. Brinegar v. United
States, 338 U.S. 160, 180 (1949) (Jackson, J., dissenting). 1
       Here, an individual’s privacy right presents itself as the sole of a work
boot. The majority opinion holds that general consent to search a bag
encompasses consent to pry the sole off of a boot found within the bag. This
holding does not comport with the Fourth Amendment, and none of the
Government’s other arguments render the search lawful. Because I cannot
approve of this erosion of Fourth Amendment protections, I respectfully
dissent.




       1 Writing of James Otis’s famous 1761 argument to the Massachusetts Superior Court
against writs of assistance, John Adams concluded: “Then and there was the first scene of
the first act of opposition to the arbitrary claims of Great Britain. Then and there the child
Independence was born.” See Thomas K. Clancy, The Framer’s Intent: John Adams, His Era,
and the Fourth Amendment, 86 IND. L.J. 979, 1005 (2011). Drawing on Otis’s arguments,
Adams drafted Article 14 of the Massachusetts Declaration of Rights—later a model for the
Fourth Amendment—which declared that “[e]very subject has a right to be secure from all
unreasonable searches and seizures of his person, his house, his papers, and all his
possessions.” See Clancy, The Framer’s Intent, at 1027–28; see also 3 Joseph Story,
COMMENTARIES ON THE CONSTITUTION OF THE UNITED STATES § 1895, at 748 (1833) (“[The
Fourth Amendment] seems indispensable to the full enjoyment of the rights of personal
security, personal liberty, and private property.”).
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                                 No. 16-40418

                                       I.
      This appeal raises two core questions: First, did Gonzalez-Badillo’s
consent to have his bag searched include consent to pry open the sole of his
boot? Second, if it did not, does any exception to the warrant requirement
render the search lawful? I would hold that the Fourth Amendment answers
“no” to both questions.
                                      A.
      The majority opinion proceeds as if this is a run-of-the-mill appeal in
which an individual, having clearly consented to a search, now regrets the
decision and seeks to ignore that consent. It is not. While the majority opinion
concludes that Gonzalez-Badillo consented to the search of his boot, neither the
district court judge nor the magistrate judge found the issue so easy; in fact,
both judges went out of their way to avoid deciding this issue and instead
rested their suppression decisions on other grounds. And for good reason. The
majority opinion’s holding that general consent to search a bag includes
authorization to damage property found within it is deeply flawed and has not
been accepted by any decision on which the majority opinion or the
Government relies.
      The Fourth Amendment guarantees “[t]he right of the people to be secure
in their persons, houses, papers, and effects against unreasonable searches and
seizures.” U.S. Const. amend IV. As a general matter, a warrant is necessary
for an involuntary search to be reasonable under the Fourth Amendment, but
it is also well-established that a search is reasonable if a citizen voluntarily
consents to the search. See Vernonia Sch. Dist. 47J v. Acton, 515 U.S. 646, 653
(1995); Florida v. Jimeno, 500 U.S. 248, 250–51 (1991). Where consent has
been given, disputes regarding the constitutionality of a search often focus on
the scope of the consent.

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                                 No. 16-40418

      To discern this scope, we apply a standard of “objective reasonableness”:
“what would the typical reasonable person have understood by the exchange
between the officer and the suspect?” Jimeno, 500 U.S. at 251. Thus, even
where there has been general consent to search, the extent of an officer’s search
within an area (e.g., a car or a bag) “is not limitless” and always depends on
the objective reasonableness of searching the particular item involved. United
States v. Ibarra, 965 F.2d 1354, 1358 (5th Cir. 1992) (en banc) (7–7 decision);
see also Jimeno, 500 U.S. at 251–52 (holding that consent to search a car
included consent to open and search a paper bag hidden beneath a seat but
noting that “[i]t is very likely unreasonable to think that a suspect, by
consenting to the search of his trunk, has agreed to the breaking open of a
locked briefcase within the trunk”). Accordingly, courts have held that while
consent to search a space includes consent to search unlocked containers
within that space, the consent does not extend to damaging property found
within. Compare United States v. Strickland, 902 F.2d 937, 942 (11th Cir.
1990) (holding that consent to search a vehicle did not include consent to slash
a spare tire and look inside), with United States v. Jackson, 381 F.3d 984, 988–
89 (10th Cir. 2004) (holding that consent to search a bag included consent to
search a baby powder container where no damage was inflicted to the
container).
      Under this standard, Gonzalez-Badillo’s consent to let Officer Nevarez
search his bag did not authorize Officer Nevarez to separate the sole from his
boot. Officer Nevarez did not find drugs in an unsealed container, a bag, or any
other item that opens and closes as part of its normal function; he found the
drugs in the sole of Gonzalez-Badillo’s boot, which—but for a quarter-sized
slit—was sealed shut. In order to retrieve the plastic bag from the boot, Officer
Nevarez inflicted damage by forcibly tearing the sole from the boot. I simply

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                                  No. 16-40418

cannot agree with the majority opinion that a “typical reasonable person”
would understand or intend consent to a search of a bag to include consent to
forcibly dismantle footwear. See Jimeno, 500 U.S. at 251. And it makes no
difference that this case involves work boots that can be glued back together,
rather than high-end Christian Louboutin pumps: Fourth Amendment
protections do not wax and wane based on the monetary value of a citizen’s
property.
      Other circuits’ decisions support this conclusion. For example, in
Strickland, the Eleventh Circuit addressed whether a suspect’s consent to
search his car included consent to slash the spare tire and look inside. 902 F.2d
at 939, 941–42. Though concluding that one who consents to a search can
“expect that search to be thorough,” the Eleventh Circuit drew the line at the
destruction of property: “[U]nder the circumstances of this case, a police officer
could not reasonably interpret a general statement of consent to search an
individual’s vehicle to include the intentional infliction of damage to the vehicle
or the property contained within it.” Id. at 941–42; see also id. at 942 (“[I]t is
difficult to conceive of any circumstance in which an individual would
voluntarily consent to have the spare tire of their automobile slashed.”).
      The Tenth Circuit in United States v. Osage, 235 F.3d 518 (10th Cir.
2000), likewise concluded that general consent to search does not authorize
damage to property. There, a suspect consented to an officer’s request to search
his bag. Id. at 519. Upon finding what appeared to be a sealed can of tamales
inside, the officer proceeded to open the can and found methamphetamine. Id.
The Tenth Circuit held that “destroying” or rendering property “completely
useless” is not included within general consent to search and so the officer’s
search of the tamale can was not authorized. Id. at 521–22; see also Cross v.
State, 560 So. 2d 228, 230 (Fla. 1990) (holding that consent to search tote bag

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                                 No. 16-40418

“did not extend to cutting into or breaking open sealed containers located
therein”).
      By contrast, where the contents of a container can be accessed without
damaging the container itself, courts have held that general consent to search
includes authorization to search the container. For example, in Jackson, a
suspect consented to the search of his bag, which held a container of baby
powder. 381 F.3d at 987. The officer removed the top of the container without
damaging it and, after finding a clear plastic bag concealed within, replaced
the lid. Id. The Tenth Circuit concluded that the suspect’s consent to search
his bag extended to the search of the container, noting in particular that the
search “did not destroy or render the container useless,” id. at 988, that the
officer “easily removed the lid” without inflicting any damage, id. at 987, and
that “the lid [could be] placed back onto the container, [which] . . . worked
properly,” id. at 988–89; see also United States v. Stewart, 93 F.3d 189, 191–92
(5th Cir. 1996) (holding that consent to search a bag and look at a medicine
bottle authorized an officer to open the medicine bottle).
      As in Strickland and Osage and unlike in Jackson, Officer Nevarez’s
search physically damaged the property being searched. The fact that
Gonzalez-Badillo consented to a search of his bag no more authorized Officer
Nevarez to damage his boot than the consents to search in Strickland and
Osage authorized the officers in those cases to damage the suspects’ property.
Cf. Strickland, 902 F.2d at 939, 941–42; Osage, 235 F.3d at 519, 521–22. In
these cases, consent to search did not include consent to damage. For the same
reason, this case is distinct from Jackson. The sole of Gonzalez-Badillo’s boot
was not removed without inflicting damage—everyone concedes that Officer
Nevarez tore the sole from the boot to some degree; nor could the boot be
repaired simply by placing the sole back on the boot like a lid on a container.

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                                       No. 16-40418

Cf. Jackson, 381 F.3d at 988 (lid to the baby powder container was “placed back
onto the container” so it “worked properly”).
       None of the majority opinion’s contrary arguments is persuasive. The
majority opinion first relies on the Seventh Circuit’s decision in United States
v. Maldonado, 38 F.3d 936 (7th Cir. 1994). In that case, the Seventh Circuit
held that the suspect’s consent to search his bag included consent to search
boxes within the bag, relying in part on its conclusion that “a reasonable person
would have understood [the suspect’s] consent for the search of his luggage to
include permission to search any item inside his luggage which might
reasonably contain drugs.” Id. at 940. To begin with, this decision did not rely
on that reason exclusively, instead grounding its holding in “all the
surrounding circumstances,” including the suspect’s conduct and the officer’s
testimony that the suspect actually consented to opening the boxes. 2 Id. More
importantly, neither Maldonado nor any other decision relied on by the
majority opinion holds that consent to search a bag (or a similar item) would
be understood by “the typical reasonable person” to include consent to




       2 The majority opinion attempts to downplay the significance of the officer’s testimony
in Maldonado that the suspect consented to the search of his bag because the district court
did not make an “explicit determination as to which testimony it found more credible.” See
Maldonado, 38 F.3d at 938. Whatever may be true of the district court’s decision in that case,
the Seventh Circuit’s decision expressly relied on the fact that “the district court never
discredited . . . testimony” that the defendant “nodded his head in response to [a] request for
further consent to search the juicer boxes.” Id. at 940.
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                                       No. 16-40418

dismantle or damage an article of clothing in order to look inside it. 3 Cf.
Jimeno, 500 U.S. at 251. 4
        The majority opinion next relies on Gonzalez-Badillo’s failure to object
to Officer Nevarez’s search when he first began to pry the sole from the boot.
It is true that a suspect’s failure to object to the breadth of the search is “an
indication that the search was within the scope of the initial consent.”
Mendoza-Gonzalez, 318 F.3d at 670. Here, however, Gonzalez-Badillo’s failure
to object when Officer Nevarez began prying the sole from the boot is of little
probative value. All parties agree that the search was within the scope of
consent up until the point of separating the sole from the boot, including Officer
Nevarez’s manipulation of the quarter-sized slit in an effort to look inside the
sole. There is no indication that Gonzalez-Badillo had any meaningful
opportunity to object between the time Officer Nevarez was looking through
the slit and when he separated the sole from the boot. As the magistrate judge
found, Officer Nevarez never asked Gonzalez-Badillo if he could remove the
sole.



        3The majority opinion relies further on its position that “Officer Nevarez reasonably
concluded that the boots were inherently suspicious.” This is a non sequitur. The fact that
Officer Nevarez reasonably concluded that the boot was suspicious—a point no one
disputes—does not at all suggest that “the typical reasonable person” would believe that
consenting to the search of a bag would include consenting to have a boot torn open. The fact
that the “boots were inherently suspicious” shows only that Officer Nevarez likely could have
successfully obtained a warrant.
        4See also United States v. Mendoza-Gonzalez, 318 F.3d 663, 666–72 (5th Cir. 2003)
(holding that consent to search within trailer included consent to search within cardboard
boxes within the trailer where no damage was inflicted on the boxes); United States v. Flores,
63 F.3d 1342, 1362 (5th Cir. 1995) (holding under plain error standard of review that consent
to search a vehicle authorized “merely unscrew[ing] two screws and remov[ing] two vent
covers” that could be replaced without damage); United States v. Marquez, 337 F.3d 1203,
1209 (10th Cir. 2003) (holding that consent to search RV for drugs and guns included consent
to search under bench seat where the district court found removal of plywood did not cause
any damage).
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                                       No. 16-40418

       The majority opinion responds that Gonzalez-Badillo was “on notice”
that Officer Nevarez was going to dismantle the boot when he expressed his
belief that the boot contained drugs and invited Gonzalez-Badillo to smell it.
Even if this were true, the fact that Gonzalez-Badillo may have then realized
that Officer Nevarez might dismantle his boot says nothing at all as to whether
his initial general consent authorized the damage to his property. Because a
“typical reasonable person” would not anticipate that her general consent to a
search authorizes damage to her property, any alleged “notice” to Gonzalez-
Badillo just before Officer Nevarez dismantled the boot offers little insight as
to the scope of Gonzalez-Badillo’s general consent. 5
       Distinguishing the Tenth Circuit’s decision in Osage, the majority
opinion argues that Gonzalez-Badillo’s consent authorized the dismantling of
his boot because Officer Nevarez’s search did not “destroy” the boot or “render[]
[it] any less useful than [it] had been before the sole was pulled open from a
pre-existing hole.” To begin with, the majority opinion cites no case of ours
holding that destroying or rendering property useless is necessary—not merely
sufficient—to finding a search outside the bounds of general consent. Indeed,
most of the cases on which the majority opinion relies were careful to
emphasize that no damage resulted from the searches at issue. See supra at
n.4. In any event, Gonzalez-Badillo’s boot was rendered useless as footwear


       5 I agree that a suspect’s failure to limit the scope of a search can be probative of
whether that suspect’s initial, general consent authorized the search. However, the factual
circumstances “are highly relevant when determining what the reasonable person would
have believed to be the outer bounds of the consent that was given.” Mendoza-Gonzalez, 318
F.3d at 667. Thus, there are undoubtedly situations where the scope of an officer’s search
exceeds the bounds of what a “typical reasonable person” might expect her general consent
to authorize, such that the suspect’s failure to affirmatively limit that consent after the fact
is not informative. For example, the fact that a suspect authorizes an officer to search her
person would not be thought to authorize a body-cavity search, regardless of whether the
suspect subsequently attempted to limit the scope of the search.
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                                       No. 16-40418

after Officer Nevarez pried off its sole. A boot with a detached, or partially
detached, sole does not give the wearer a stable foundation on which to walk,
nor is it effective to protect against dirt, water, and other elements. 6
       Relying on United States v. Marquez, the majority opinion argues further
that the search was lawful because Officer Nevarez “inflicted minimal damage
on the boot.” To begin with, unlike in this case, the district court in Marquez
expressly “found” that the suspect’s property was not “damaged or destroyed”
as a result of the search. 337 F.3d at 1209. Even assuming arguendo that
damage was minimal, that should not change the outcome of this case. In
Osage, for example, the can of tamales—like Gonzalez-Badillo’s boot—had
already been opened by the suspect in order to insert drugs and then resealed.
See Osage, 235 F.3d at 519, 520–21. Nonetheless, the Tenth Circuit concluded
that the suspect’s general consent to search did not authorize the officer to
reopen the tamale can—even though the suspect could have easily resealed the
tamale can just as he had done after inserting the drugs. Thus, contrary to the
majority opinion’s approach, the Tenth Circuit held a search unconstitutional
despite the “minimal” damage to the suspect’s property. 7
       In any event, adopting a blanket rule requiring destruction or
uselessness is inconsistent with Supreme Court precedent and gets the Fourth
Amendment inquiry exactly backwards. The Fourth Amendment requires us
to determine the scope of consent from the standpoint of “the typical reasonable


       6  Indeed, although some footwear derives a significant amount of its value from the
soles (the aforementioned Christian Louboutins), all shoes need soles to be useful as shoes.
These work boots’ lack of a signature red sole or high-dollar pricetag does not mean that they
are just as useful with as without soles.
        7 Under the majority opinion’s theory, a search of a locked briefcase would be

constitutional if the briefcase could be subsequently rendered functional—and yet the
Supreme Court has cautioned that “[i]t is very likely unreasonable to think that a suspect,
by consenting to the search of his trunk, has agreed to the breaking open of a locked briefcase
within the trunk.” See Jimeno, 550 U.S. at 251–52 (emphasis added).
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                                  No. 16-40418

 person,” Jimeno, 500 U.S. at 251, not by imposing a one-size-fits-all rule. As to
 this inquiry, the factual circumstances “are highly relevant when determining
 what the reasonable person would have believed to be the outer bounds of the
 consent that was given.” Mendoza-Gonzalez, 318 F.3d at 667 (citing Ibarra, 965
 F.2d at 1357). So, even if destruction and uselessness were the appropriate rule
 to apply to a box or other container, a broader rule should apply to an article
 of clothing (such as a boot), which is different in kind: its intended use is not
 storage, nor is it designed to be opened and closed like a container.
       Accordingly, I would hold that Gonzalez-Badillo’s consent to a search of
 his bag would not be understood by the “typical reasonable person” to authorize
 Officer Nevarez to remove the sole of his boot. See Jimeno, 500 U.S. at 251.
                                        B.
       The majority opinion decides this appeal exclusively on the scope-of-
 consent issue. Because I do not agree that Gonzalez-Badillo’s general consent
 authorized Officer Nevarez to disassemble the boot, I address the
 Government’s other arguments for affirmance. The Government argues that
 the suppression ruling can be affirmed on the bases relied on by the magistrate
 judge and the district court judge: (1) the search was reasonable because it was
 authorized by the “plain view” exception to the warrant requirement; and (2)
 the search was reasonable because of exigent circumstances. We review
 whether the plain view doctrine applies de novo, and we review a
 determination of exigent circumstances for clear error. See United States v.
 Williams, 41 F.3d 192, 196 (4th Cir. 1994); see also United States v. Blount, 123
 F.3d 831, 837 (5th Cir. 1997).
                                        1.
     Under the “plain view” doctrine, “[l]aw enforcement officers may seize
anything they find in plain view without a search warrant.” United States v.

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                                       No. 16-40418

Munoz, 150 F.3d 401, 411 (5th Cir. 1998). This exception applies where: (1) the
officers “are lawfully in a position” to view the object; (2) “its incriminating
character is immediately apparent”; and (3) “the officers have a lawful right of
access to it.” Id.; see also United States v. De Jesus-Batres, 410 F.3d 154, 159
(5th Cir. 2005).
        The “plain view” exception to the Fourth Amendment plainly does not
 render the search of Gonzalez-Badillo’s boot constitutional. As just explained,
 Gonzalez-Badillo’s general consent to search his bag did not authorize Officer
 Nevarez to pry open the sole of his boot, and so Officer Nevarez did not have a
 “lawful right of access” to the contents of the boot. Munoz, 150 F.3d at 411.
        The Government contends, however, that the search was justified by the
 plain view exception because, in its view, it was a “foregone conclusion” that
 there was contraband in the sole of the boot because of all the other evidence
 pointing this direction. This argument confuses the Fourth Amendment
 analysis: probable cause does not, in normal circumstances, authorize a search;
 it is instead the key to obtaining a warrant which, in turn, authorizes the
 search. Vernonia Sch. Dist. 47J, 515 U.S. at 653 (“Where a search is
 undertaken by law enforcement officials to discover evidence of criminal
 wrongdoing, this Court has said that reasonableness generally requires the
 obtaining of a judicial warrant,” and “[w]arrants cannot be issued, of course,
 without the showing of probable cause.”). Contrary to the Government’s
 position, the existence of overwhelming probable cause is not a reason to ignore
 the warrant requirement; indeed, it is in precisely those circumstances that a
 warrant will be the easiest to obtain. The Government cites no binding
 authority to support its argument. 8


        8The Government’s reliance on United States v. Corral, 970 F.2d 719 (10th Cir. 1992)
 is unpersuasive. In that case, the Tenth Circuit held that the plain view doctrine authorized
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                                     No. 16-40418

                                            2.
      Nor is the warrantless search justified by an exigent circumstance. It is
well-established that a warrantless search may be lawful where circumstances
requiring immediate action are present. See United States v. Rico, 51 F.3d 495,
500–01 (5th Cir. 1995). For example, we have recognized that a warrantless
search may be lawful where: (1) there is “the possibility that evidence will be
removed or destroyed”; (2) officers are in “pursuit of a suspect”; or (3) there is
an “immediate safety risk[ ] to officers and others.” United States v. Newman,
472 F.3d 233, 237 (5th Cir. 2006).
      The Government, following the magistrate judge’s reasoning, argues
that exigent circumstances existed in this case because Gonzalez-Badillo was
preparing to board a bus. This is simply wrong. Gonzalez-Badillo was no longer
in line to board the bus; he had voluntarily stepped out of line at Officer
Nevarez’s request while the search was being conducted. Nor was any other
exigent circumstance present. There is absolutely no evidence or contention
that Gonzalez-Badillo posed a threat to Officer Nevarez or anyone else. It is
conceded that he did not possess a weapon, and there is no suggestion that
Officer Nevarez suspected him of possessing a weapon. Far from signaling
potential danger, Gonzalez-Badillo cooperated fully with Officer Nevarez’s
every request. Further, there was no potential for destruction of evidence as
Officer Nevarez was in possession of the bag and the boot.



the warrantless search of a brick of cocaine (i.e., to cut the wrapping around the cocaine)
because of the “virtual certainty” that the packaging contained cocaine, and so no further
expectation of privacy was invaded by physically searching the brick. Id. at 725–26. There,
however, the “certainty” followed from the fact that an undercover police officer had
previously cut into the packaging and confirmed that it contained cocaine and then
subsequently communicated this fact to his colleagues who conducted the search. Id. at 722–
23, 725–26. Whatever the merits of this decision—which is not binding—the basis for virtual
certainty in that case does not exist here.
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                                No. 16-40418

      The Government relies on our decision in United States v. Johnson, 862
F.2d 1135 (5th Cir. 1988), but that decision is readily distinguishable. There,
the warrantless search was conducted when the police officers had been
informed that the two suspects “could be armed,” where the officers would have
“needed to use both surprise and superior force in effecting the arrest,” where
there were “many innocent citizens . . . waiting in the bus station,” and where
the “suspects were preparing to leave within minutes.” Id. at 1138–40; see also
id. at 1141. It was based on these factors—“and in particular the reasonable
concerns for safety presented by this arrest”—that the warrantless search was
upheld in Johnson. Id. at 1139. None of these factors is present here.
      The Government’s argument is especially unconvincing given that
Gonzalez-Badillo has conceded that Officer Nevarez had probable cause (or at
least reasonable suspicion) to detain him while awaiting a warrant authorizing
a search of the boot. To find exigency in these circumstances would invite law
enforcement to forego taking steps lawfully available to them.
                                 * * * * *
      I would therefore hold that the magistrate judge and the district court
judge wrongly applied the plain view doctrine and clearly erred in finding
exigent circumstances.
                                      II.
      To ensure that our constitutional liberties endure, the judiciary must
resist any invitation to ease the Fourth Amendment’s reins on government
action—especially in cases like this one, as the parameters of Fourth
Amendment protection are constantly litigated in drug cases. See, e.g., Nancy
Leong, Making Rights, 92 B.U. L. REV. 405, 435 (2012). Unfortunately, the
majority opinion has let down its guard. According to the majority opinion, law
enforcement is now free to construe general consent to search a bag to include

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                                 No. 16-40418

consent to pull apart, pry open, or otherwise dismantle property found within—
all on the implausible premise that a reasonable person would contemplate
such damage to property when giving general consent to search a bag. This
ruling “does not implement the high office of the Fourth Amendment to protect
privacy.” Georgia v. Randolph, 547 U.S. 103, 127 (2006) (Roberts, C.J., and
Scalia, J., dissenting).
      Because Gonzalez-Badillo did not consent to the warrantless search of
his boot and because the Government offers no other valid basis for justifying
the search, I would reverse the denial of the motion to suppress and vacate his
conviction and sentence. I respectfully dissent.




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