                    United States Court of Appeals
                            FOR THE EIGHTH CIRCUIT
                                   ___________

                                   No. 07-3706
                                   ___________

United States of America,             *
                                      *
           Plaintiff - Appellee,      *
                                      * Appeal from the United States
      v.                              * District Court for the
                                      * District of Nebraska.
David Santana-Aguirre,                *
                                      *
           Defendant - Appellant.     *
                                 ___________

                             Submitted: March 27, 2008
                                Filed: August 12, 2008
                                 ___________

Before RILEY, BEAM, and MELLOY, Circuit Judges.
                            ___________

MELLOY, Circuit Judge.

      David Santana-Aguirre appeals the district court’s1 denial of his motion to
suppress evidence obtained during a search of his suitcase. Santana-Aguirre
consented to a search of his suitcase. A drug interdiction investigator found two wax
candles in the suitcase, cut into them, and discovered methamphetamine. After the
denial of his motion, Santana-Aguirre conditionally pled guilty to possession with


      1
       The Honorable Joseph F. Bataillon, Chief Judge, United States District Court
for the District of Nebraska. The district court adopted the Report and
Recommendation of the Honorable Thomas D. Thalken, United States Magistrate
Judge for the District of Nebraska.
intent to distribute methamphetamine and was sentenced to 120 months. Santana-
Aguirre appeals, arguing that the scope of the search exceeded the scope of his
consent.

                                           I.

       Two investigators, Richard Lutter and Alan Lynn Eberle, Jr., from the Nebraska
State Patrol Commercial Interdiction Unit were assigned to an Omaha bus terminal
to look for drug couriers. While watching passengers disembark from a bus
originating on the West Coast, Investigator Eberle’s attention was drawn to Santana-
Aguirre, who was holding a medium-sized carry-on suitcase tucked under his arm.
Santana-Aguirre met and conversed with another individual, later identified as co-
defendant Julian Arana-Santibanez. Santana-Aguirre set the suitcase down but leaned
it against his body. He looked very nervous and kept looking over his shoulder. After
conversing, they walked single file toward the entrance of the bus station.

       Investigator Lutter arrived at the bus station and as he approached the terminal,
he observed two individuals, the co-defendants, walking single file along the side of
the terminal. Investigator Lutter noted this abnormality and started to walk towards
them. Investigator Lutter saw Investigator Eberle following the co-defendants and
making a hand gesture to indicate that he wanted to speak with the co-defendants.
Investigator Lutter approached and began speaking with Santana-Aguirre.
Investigator Lutter communicated that he was a law enforcement officer, produced his
badge, and informed Santana-Aguirre that he was not under arrest. Santana-Aguirre
did not understand, and so Investigator Lutter repeated his earlier statements in
Spanish. He asked Santana-Aguirre if he understood—“Comprendo?” Santana-
Aguirre stated “yes.”

      In Spanish, Investigator Lutter asked for Santana-Aguirre’s identification and
bus ticket. Investigator Lutter noticed the identification looked similar to other

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identifications that proved fictitious. He also noticed that the bus ticket was one-way
and was purchased for cash. Investigator Lutter knew that drug couriers often used
one-way tickets paid for with cash. He asked Santana-Aguirre if he possessed any
illegal substances, and Santana-Aguirre responded negatively. Investigator Lutter
asked for permission to search Santana-Aguirre’s body and suitcase. In an affirmative
manner, Santana-Aguirre turned, faced, looked at and opened his hands to Investigator
Lutter. Invesigator Lutter found nothing on Santana-Aguirre’s body and pointed to
the suitcase.

       Investigator Lutter requested permission to search the suitcase. Santana-
Aguirre opened his hand to Investigator Lutter and pointed to the suitcase, and
Investigator Lutter understood the gestures as consent to search. Investigator Lutter
searched the suitcase and found two large wax candles, each approximately the size
of a gallon can of coffee. The candles looked standard and inexpensive, but stood out
to him because it would be easier for someone to buy identical candles at his
destination rather than transport them. He then noticed that “the layering of the candle
was inconsistent”—“[t]here were bumps separating the different layers of the candle.”
The original packaging had been removed, torn, and then re-taped. There were also
holes around the candlewick.

       Investigator Lutter noted the reactions of the co-defendants. Santana-Aguirre
appeared “very nervous” and looked constantly at Arana-Santibanez, but never
directly at Investigator Lutter. Santana-Aguirre appeared “very dependent” on Arana-
Santibanez for guidance and direction. The investigators both noticed that Arana-
Santibanez had become “very interested” in Investigator Lutter’s contact and search
of Santana-Aguirre, even though Investigator Eberle was then searching Arana-
Santibanez’s bag. In English, Investigator Lutter asked Arana-Santibanez about the
candles, and Arana-Santibanez responded that they were gifts and cost about eight
dollars. Investigator Lutter asked Arana-Santibanez for permission to cut open the
candles, and Arana-Santibanez responded, “That is on [Santana-Aguirre].”

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      In English, Investigator Lutter stated that he wanted to take the candles to the
back room. He did not know how to say it in Spanish to Santana-Aguirre, so he tried
to explain it in English and used non-verbal directions. Santana-Aguirre did not say
anything and looked at Arana-Santibanez for guidance. Investigator Lutter walked
towards the back room, Santana-Aguirre followed, and Arana-Santibanez and
Investigator Eberle brought up the rear. The backroom was approximately twenty feet
away.

       Once in the room, Investigator Lutter immediately cut into one of the candles
with a knife. He found a duct-taped bundle inside the candle and conducted a positive
field test for methamphetamine. The co-defendants were then placed in custody,
cuffed, and advised that they were under arrest. The investigators collected the
evidence and took it to the Nebraska State Patrol traffic office. There, they cut into
the second candle and found methamphetamine.

      The co-defendants were indicted on two counts of drug trafficking. After an
evidentiary hearing, a magistrate judge recommended denial of Santana-Aguirre’s
motion to suppress the evidence gained from the search of the candles. Santana-
Aguirre objected to the report and recommendation. After a de novo review of the
record, the district court denied Santana-Aguirre’s motion, finding that the search of
the interior of the candles was within the scope of Santana-Aguirre’s consent.
Santana-Aguirre appeals.

                                         II.

      In an appeal of a denied motion to suppress, “we review the district court’s
factual findings for clear error and its ultimate determination of whether those facts
amounted to a constitutional violation de novo.” United States v. Valencia, 499 F.3d
813, 815 (8th Cir. 2007). The Fourth Amendment proscribes unreasonable searches.
Florida v. Jimeno, 500 U.S. 248, 250 (1991). Consensual searches are reasonable if

                                         -4-
they do not exceed the scope of the consent given, and “[t]he 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?” Id. at 251 (quotation omitted).

       Santana-Aguirre argues that his motion to suppress should have been granted
because Investigator Lutter exceeded the scope of his consent to search by cutting into
and destroying the candles. Neither the magistrate judge nor the district court made
a finding regarding the damage inflicted to the candles. We assume for the sake of
argument that the candles were destroyed.

      Consensual searches generally cannot be destructive. United States v. Alverez,
235 F.3d 1086, 1088-89 (8th Cir. 2000). 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. at 1089.

       The district court’s finding that Santana-Aguirre consented to the searches gives
us pause. Santana-Aguirre did not speak or understand English, and Investigator
Lutter did not attempt to explain in Spanish that he would cut into the candles. After
Investigator Lutter indicated that he wanted to take the suitcase into another room,
Santana-Aguirre looked to Arana-Santibanez for guidance and then followed
Investigator Lutter into the back room, where Investigator Lutter immediately cut into
the candles. Santana-Aguirre did not appear to fully understand or comprehend the
situation. We do not, however, reach the ultimate issue of his consent to the
destructive searches because we conclude there was probable cause to support the
searches.

     Investigator Lutter had probable cause to do destructive searches of the candles.
Probable cause is determined after considering the totality of the circumstances.

                                          -5-
United States v. Gettel, 474 F.3d 1081, 1086 (8th Cir. 2007). The candles were large,
plain, and inexpensive. They were not the type of candles that a person would
normally transport hundreds of miles in a suitcase. The layering of the candles was
inconsistent, and the candles had holes by the wicks and bumps separating the
different layers. The candles did not appear to be in their original packaging, the
lettering on the packaging appeared to be torn, and tape secured the packaging. Also,
Arana-Santibanez became very interested in Investigator Lutter’s search of the
suitcase, even though Investigator Eberle was then questioning Arana-Santibanez.
Further, the investigators were already suspicious of Santana-Aguirre because he
bought a one-way bus ticket for cash, appeared very nervous, repeatedly looked over
his shoulder, carried his suitcase under his arm, and walked immediately behind
Arana-Santibanez in the bus terminal; the investigators knew these actions were
common for drug couriers. Given the totality of the circumstances, Investigator Lutter
had probable cause to believe that the candles contained contraband, and thus the
destructive searches were reasonable. See Alverez, 235 F.3d at 1089 (“[T]he cutting
of the spare tire likely exceeded the scope of the consensual search and may well have
required suppression of the evidence had the officers not had probable cause to
expand the search” under the automobile exception.); id. (“Because the troopers had
probable cause to believe that contraband was secreted in the vehicle, in particular in
the spare tire, they could lawfully complete a full and thorough search of the tire,
including dismantling or damaging it.”); United States v. Urbina, 431 F.3d 305, 310
(8th Cir. 2005) (“The sound of objects moving in the tank gave the officers probable
cause to believe that the gas tank contained contraband, and probable cause is
sufficient to justify the warrantless search of an automobile or a container therein,
including the destruction, if necessary, of the container.”); Cf. United States v. Osage,
235 F.3d 518, 520 n.1 (10th Cir. 2000) (reversing the denial of a motion to suppress
because opening a sealed can and thereby destroying it exceeded the scope of a
consent to search a suitcase, but expressly noting that the government did not argue
there was probable cause to seek a warrant on the sealed can).



                                           -6-
       Investigator Lutter’s search of the suitcase and discovery of the candles was
within the scope of Santana-Aguirre’s consent to search. Once the candles were found
and examined, the officer had articulable suspicion that supported a finding that he
had probable cause for further destructive searches. Accordingly, the judgment of the
district court is affirmed.

BEAM, Circuit Judge, dissenting.

       This is a case in which the police clearly overreached in the course of their
investigation. The consent obtained was to look inside the suitcase, nothing more.
The court is correct in noting that

      [c]onsensual searches generally cannot be destructive. United States v.
      Alverez, 235 F.3d 1086, 1088-89 (8th Cir. 2000). 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. at 1089.

Ante at 5. Here, there was neither probable cause nor articulable suspicion sufficient
to extend the search by cutting into the candles. The best that the court can do by way
of precedent is to cite the automobile exception relied upon in cases such as Alverez
and United States v. Urbina, 431 F.3d 305, 310 (8th Cir. 2005), but the policies
underlying the automobile exception are wholly inapplicable here. The constitutional
approach required the securing of the suitcase, which the consent to search its interior
permitted, followed by an application for a search warrant. The shortcut adopted by
the investigators was fatal to the government's position. The district court should be
reversed. Accordingly, I dissent.
                         ______________________________




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