                   United States Court of Appeals
                            FOR THE EIGHTH CIRCUIT
                                 ___________

                                 No. 05-3517
                                 ___________

United States of America,             *
                                      *
            Appellee,                 *   Appeals from the United States
                                      *   District Court for the
      v.                              *   District of Nebraska.
                                      *
Courtney Allen Coney,                 *
                                      *
            Appellant.                *

                                 ___________

                                 No. 05-3590
                                 ___________

United States of America,             *
                                      *
            Appellee,                 *
                                      *
      v.                              *
                                      *
Robert Allen Coney,                   *
                                      *
            Appellant.                *
                                    ___________

                                    No. 05-3931
                                    ___________

United States of America,                *
                                         *
             Appellee,                   *
                                         *
      v.                                 *
                                         *
Marco Allen Coney,                       *
                                         *
             Appellant.                  *
                                    ___________

                              Submitted: April 19, 2006
                                 Filed: August 4, 2006
                                  ___________

Before LOKEN, Chief Judge, BOWMAN and BYE, Circuit Judges.
                             ___________

BOWMAN, Circuit Judge.

       Brothers Courtney Allen Coney, Robert Allen Coney, and Marco Allen Coney1
(collectively, the defendants) appeal the denial by the District Court2 of their motions
to suppress. We affirm.



      1
       Because the defendants share the same middle and last names, we will refer
to each defendant by his first name, i.e., Courtney, Robert, and Marco.
      2
       The Honorable Richard G. Kopf, United States District Judge for the District
of Nebraska, adopting the Report and Recommendation of the Honorable David L.
Piester, United States Magistrate Judge for the District of Nebraska.

                                          -2-
                                         I.

       On a cold but sunny day in December 2004, Deputy Bill Maddux of the Seward
County (Nebraska) Sheriff's Office was running stationary radar on Interstate 80. In
the early afternoon, Maddux clocked a van occupied by the defendants traveling
eighty-one miles per hour. Because the maximum speed limit was seventy-five miles
per hour, Maddux made a traffic stop of the van. Robert was in the driver's seat,
Marco was in the front passenger's seat, and Courtney was in the far back of the van
on the rear-bench seat. After Maddux informed Robert that he had been speeding,
Maddux asked Robert to come to the patrol car. Robert obliged. While inside the
patrol car, Maddux told Robert that he was going to receive a warning for speeding.
Maddux checked the status of Robert's driver's license, checked to see if any
outstanding warrants for Robert existed, and because the van was rented, reviewed
the van's rental agreement. The rental agreement listed the defendants' mother as the
renter and Courtney as the additional driver. While performing these duties, Maddux
asked Robert about his travel plans, e.g., where the brothers had been and where they
were going. Maddux then asked Robert to stay in the car so that Maddux could go
to the van to ask Courtney and Marco some questions about the rented van, since the
renter was not present. Maddux asked Marco about the rental agreement and also
asked Marco and Courtney about their travel plans, including where they had been
and where they were going. Maddux then told Marco that he was going to write a
warning to Robert for speeding and that they would be finished shortly.

       When Maddux returned to the patrol car, he finished writing the warning to
Robert, again asked Robert where he had been, and received communications from
dispatch that Robert's license was valid and that no warrants were outstanding.
Maddux returned Robert's license and rental agreement, issued a written warning, and
told Robert "that he was free to go." Suppression Hearing Transcript at 44:6–7. After
Robert had exited the patrol car but before he shut the door, Maddux asked Robert
if he would mind talking for a minute. Robert agreed to do so. Because it was cold

                                        -3-
outside, Maddux asked Robert if he would mind sitting in the patrol car. Robert
agreed and returned to the front seat. Maddux then asked Robert if he would mind
staying in the patrol car while Maddux returned to the van to talk to Courtney and
Marco. Robert agreed to remain in the patrol car and never indicated that he did not
want to remain there. At this point, approximately fifteen minutes had elapsed since
Maddux had clocked the van traveling over the speed limit.

       Returning to the van, Maddux asked Marco if he would talk to Maddux for a
few minutes. When Marco agreed, Maddux asked if Marco would mind stepping out
of the van to talk. Marco exited the van. While standing in front of the van, the two
men talked about the brothers' trip. Maddux asked Marco if he had any luggage,
illegal drugs, or a weapon in the van. After Marco said that he had a few bags but did
not have drugs or weapons, Maddux asked Marco for permission to search his bags.
Marco said, "[Y]eah, that's fine." Id. at 48:8. Marco then asked Maddux why he was
asking these questions. Maddux said that a few things were not adding up and that
he wanted to make sure that Marco did not have any of the items discussed. For
officer safety reasons, Maddux asked Marco to stand in the ditch in front of the van.

       Maddux returned to the van to seek Courtney's consent to search the van since
Courtney was listed on the rental agreement. Maddux asked Courtney if he would
mind talking for a few minutes. Courtney agreed. Maddux asked Courtney about the
trip and if he had any bags, drugs, or weapons. Courtney said that he had bags but
no drugs or weapons. When Maddux asked Courtney for permission to search his
bags and the van, Courtney said no. Maddux returned to the patrol car and asked
Robert if he had bags or drugs in the van. Robert said that he had a bag or two but
no drugs. Maddux asked Robert for permission to search his bags. Robert refused.
Maddux then asked Robert "if he would mind having a seat in the back seat of
[Maddux's] patrol unit, which is a caged area where we haul prisoners." Id. at
51:14–16. Robert agreed and sat in the back seat. Maddux wanted Robert to sit in



                                         -4-
the back seat because he planned to bring Marco to the patrol car and because
Maddux had developed "a major safety concern at that time." Id. at 52:6.

       Maddux motioned for Marco to come over to the patrol car. When Marco
arrived, he and Maddux spoke while standing at the rear of the car. Maddux thanked
Marco for his cooperation and explained that Robert and Courtney had refused to
allow a search of their bags or the van. Marco responded that he did not understand
why his brothers would not allow Maddux to search and told Maddux that Marco
wanted to talk to his brothers. Maddux informed Marco that he was going to call a
drug-detection dog "to do a sniff around the" van. Id. at 53:18–19. Marco again
asked to talk to Courtney, and Maddux said okay. Marco and Maddux then went to
the van where Marco asked Courtney, "[W]hy don't you want them to search the van
or search the bags, we ain't got anything." Id. at 54:18–19. After a brief discussion
between Marco and Courtney about granting Maddux permission to search, Courtney
said, "[Y]eah, yeah." Id. at 56:4. At that point, Maddux asked Courtney to step out
of the van. Maddux "confirmed with [Courtney] three more times that it was okay for
[Maddux] to search the vehicle." Id. at 56:23–24. Maddux then asked Courtney to
stand on the shoulder of the interstate and asked Marco to sit in the front seat of the
patrol car. Maddux told Marco that Maddux would wait for a state trooper to arrive
before conducting the search. Three to four minutes later, a state trooper arrived on
the scene.

       Maddux talked to the state trooper while standing between the van and
Maddux's patrol car. Marco then exited the patrol car and said that he would open the
van's rear door so that Maddux could search. Maddux told Marco to return to the
patrol car and that if he needed anything, he should get Maddux's attention without
leaving the car. Marco returned to the car. About a minute later, Marco again got out
of the patrol car and asked if he could open the van's rear door. Maddux asked Marco
to return to the car, which Marco did. About another minute later, a third state
trooper arrived, at which time Maddux began searching the van. Maddux discovered

                                         -5-
shoe boxes containing four packages of cocaine and three packages of marijuana.
Maddux also "found a loaded and chambered semi-automatic [45-caliber] handgun"
behind the back seat, accessible only through the rear cargo hatch of the van. Id. at
69:14–15.

      Courtney, Robert, and Marco were charged with conspiracy to distribute and
possess with intent to distribute five or more kilograms of cocaine, in violation of 21
U.S.C. §§ 841(a)(1), (b)(1), 846 (2000), and with possession with intent to distribute
five or more kilograms of cocaine, in violation of 21 U.S.C. § 841(a)(1), (b)(1).
Additionally, Marco was charged with possession of a firearm in furtherance of the
crimes contained in the other charges, in violation of 18 U.S.C. § 924(c)(1)(A). Each
defendant filed a motion to suppress the evidence gained from the search of the van.

        The Magistrate Judge held a suppression hearing, at which Maddux, Courtney,
Robert, and the defendants' mother testified. At the conclusion of the hearing, the
Magistrate Judge ruled from the bench that the motions to suppress should be denied.
First, the Magistrate Judge determined that Maddux had probable cause to stop the
van for speeding. Second, the Magistrate Judge determined that at the time Maddux
gave Robert the warning, returned Robert's license and the rental agreement, and told
Robert that he was free to go, Maddux did not have reasonable suspicion to further
detain Robert. The Magistrate Judge stated, however, that "the officer got lucky."
Suppression Hearing Transcript at 326:17. The Magistrate Judge concluded that
when Maddux "asked Robert if he would get back into the [patrol] car and answer
some questions [and] Robert agreed and did so[, . . .] at that point [it was] a
consensual encounter between citizen and officer." Id. at 326:17–24. Third, the
Magistrate Judge addressed the question of whether Maddux had obtained consent
to search the van. Stating that "it's a very close question," the Magistrate Judge
"side[d] with the officer on the credibility of the consent issue." Id. at 328:9–11. The
Magistrate Judge concluded, "I think that Courtney did give consent. And I think that
there's nothing to indicate that that consent was other than completely voluntary. If

                                          -6-
there was pressure, it was by Marco and not by the officer." Id. at 328:12–15. The
Magistrate Judge later filed a short Report and Recommendation (R&R)
recommending that the District Court deny the defendants' motions to suppress.

      The defendants objected to the R&R. The District Court adopted the R&R and
denied the defendants' motions to suppress. Thereafter, Courtney, Robert, and Marco
each entered a conditional guilty plea to the conspiracy count, reserving the right to
appeal the denial of their motions to suppress. They now exercise those rights.

      We review the District Court's legal conclusions de novo and its factual
findings for clear error. United States v. Brown, 345 F.3d 574, 578 (8th Cir. 2003).
We review for clear error the District Court's finding that Courtney voluntarily
consented to the search of the van. Id. "We will affirm an order denying a motion
to suppress unless the decision is unsupported by substantial evidence, is based on
an erroneous view of the applicable law, or in light of the entire record, we are left
with a firm and definite conviction that a mistake has been made." United States v.
Vanhorn, 296 F.3d 713, 717 (8th Cir. 2002), cert. denied, 537 U.S. 1167 (2003).

                                         II.

       The Fourth Amendment guarantees the “right of the people to be secure in their
persons, houses, papers, and effects, against unreasonable searches and seizures.”
U.S. Const. amend. IV; see United States v. Ameling, 328 F.3d 443, 447 (8th Cir.)
(recognizing that the Fourth Amendment applies to the states through the Fourteenth
Amendment), cert. denied, 540 U.S. 961 (2003). The Supreme Court has stated that
"stopping an automobile and detaining its occupants constitute a 'seizure' within the
meaning of [the Fourth and Fourteenth] Amendments, even though the purpose of the
stop is limited and the resulting detention quite brief." Delaware v. Prouse, 440 U.S.
648, 653 (1979). This case presents three issues involving consideration of the
Fourth Amendment. First, did the District Court err in deciding that Maddux had

                                         -7-
probable cause to stop the van for speeding? Second, did the District Court err in
concluding that after Maddux concluded the traffic stop, a consensual encounter
ensued between a police officer and three citizens? Third, did the District Court err
in finding that Courtney voluntarily consented to a search of the van?

                                          A.

        The defendants argue3 that Maddux lacked probable cause to stop the van.
First, they contend that the stop was pretextual, arguing that Maddux stopped the van
because the Coneys are black. Second, they maintain that the District Court's factual
finding that Maddux clocked the van traveling eighty-one miles per hour was clearly
erroneous because the van was traveling seventy-five miles per hour. Finally, they
maintain that the Magistrate Judge violated Neb. Rev. Stat. § 60-6,192 (2004) and
State v. Lomack, 476 N.W.2d 237 (Neb. 1991), by allowing Maddux to testify that
the radar clocked the van traveling eighty-one miles per hour.

       An officer has probable cause to conduct a traffic stop when he observes even
a minor traffic violation. Brown, 345 F.3d at 578. "This is true even if a valid traffic
stop is a pretext for other investigation." United States v. Linkous, 285 F.3d 716, 719
(8th Cir. 2002); see Whren v. United States, 517 U.S. 806, 813 (1996) (holding that
an officer's subjective intentions for conducting a traffic stop "play no role in
ordinary, probable-cause Fourth Amendment analysis"). As long as an officer
"objectively has a reasonable basis for believing that the driver has breached a traffic
law," the officer has probable cause to conduct a traffic stop. United States v.
Thomas, 93 F.3d 479, 485 (8th Cir. 1996).




      3
       When referring to the defendants' arguments, we actually may be addressing
an argument made by one, two, or all three of the defendants.

                                          -8-
       Robert argues that "Maddux's initial stop [of the van] was not the result of an
observed law violation, but was the result of a racially based stop." Robert's Brief at
7. This argument relates to the defendants' argument that Robert was not speeding.
The defendants presented evidence—through the testimony of Robert, Courtney, and
the defendants' mother—that the van's cruise control was set on seventy-five miles
per hour and therefore was not speeding. In essence, the defendants' evidence
attempted to cast doubt on Maddux's testimony that he clocked the van going eighty-
one miles per hour. The District Court clearly rejected the defendants' evidence in
favor of Maddux's testimony, thereby believing Maddux that he had observed a traffic
violation. After thoroughly reviewing the record, we see no clear error in the findings
that Maddux stopped the van for speeding and not because of the defendants' race.
Because the van's speeding gave Maddux probable cause to stop the van, the
defendants' pretext argument that Maddux stopped them because of their race cannot
prevail.4 That is not the end of our inquiry, however.

      We now address—and reject—the argument that the District Court erroneously
concluded that Maddux had probable cause to stop the van for speeding because the
government failed to establish the proper foundation under Neb. Rev. Stat. § 60-6,192
to admit Maddux's testimony that the radar clocked the van traveling eighty-one miles
per hour. The Magistrate Judge acknowledged that the defendants had made "a nice
argument," but rejected it because he believed "that that's a guilt beyond a reasonable
doubt standard and not a probable cause standard." Suppression Hearing Transcript
at 322:9–13. Finding that Maddux was running radar when he saw the van traveling
eighty-one miles per hour, that Maddux had "that morning tested the machine," and
that Maddux had "been certified in the use of this very machine in the past," id. at
322:17–20, the Magistrate Judge concluded, "I don't have any problem with

      4
        For the sake of completeness, we note that the issue of "selective enforcement
of the law based on considerations such as race" is based on "the Equal Protection
Clause, not the Fourth Amendment." Whren, 517 U.S. at 813. We also note that the
defendants have not asserted an equal-protection claim.

                                         -9-
concluding that a reasonable officer in his position would have found that there was
probable cause to stop this vehicle," id. at 322:21–24.

        The defendants specifically contend that Nebraska law prohibits the use of
radar evidence in suppression hearings when the government fails to strictly follow
§ 60-6,192(1). We do not read Nebraska law that broadly. In Lomack, the Nebraska
Supreme Court expressly stated, "We note that [§ 60-6,192(1)] requires a rather
uncomplicated procedure to meet the statutory foundation for admission of radar
evidence in a contested speeding case." 476 N.W.2d at 242 (emphasis added); cf.
State v. Hill, 577 N.W.2d 259, 263–64 (Neb. 1998) (stating that "where evidence of
speed is adduced not to establish a driver's rate of travel so as to prove a charge that
he exceeded a particular speed limit, but, rather, as one piece of evidence tending to
establish that the driver operated a vehicle in such a manner as to indicate an
indifferent or wanton disregard for the safety of persons or property, the speed is not
'at issue,' as contemplated by [§ 60-6,192], and therefore need not be corroborated by
a microwave, mechanical, or electronic speed measurement device"). Thus, the
defendants' attack on the government's evidence based on Lomack and § 60-6,192(1)
is better left to speeding cases and not to motions to suppress evidence in federal drug
cases. Whether the State of Nebraska would have been able to prosecute Robert for
speeding is another question, but one that we do not need to address here.

       It is critical to understand that "[t]he determination of whether probable cause
existed is not to be made with the vision of hindsight, but instead by looking to what
the officer reasonably knew at the time." United States v. Sanders, 196 F.3d 910, 913
(8th Cir. 1999). We completely agree with the District Court that Maddux had
probable cause to stop the defendants' van because he objectively had a reasonable
basis for believing that the van was speeding. There is no indication from the record
that Maddux had any idea that his radar was not functioning properly. Instead, the
exact opposite is true. Maddux's multiple tests of the radar indicated that it was
functioning properly. When the radar indicated that the van was speeding, Maddux

                                         -10-
had probable cause to make a traffic stop. The bottom line is the District Court found
that Maddux believed the radar was functioning properly, that the radar clocked the
van traveling eighty-one miles per hour, and that Maddux stopped the van for
speeding and not because of the defendants' race. Because these findings are not
clearly erroneous, we hold that Maddux's stop of the van was supported by probable
cause.

                                          B.

       The defendants next argue that their constitutional rights were violated because
Maddux unlawfully detained them without reasonable suspicion of criminal activity.
The defendants maintain that Maddux unlawfully expanded the scope of the traffic
stop by asking Marco and Courtney questions instead of simply writing Robert a
warning for speeding. We disagree. Once Maddux made the traffic stop, he had the
authority to check Robert's license and the van's registration, ask Robert about his
destination and purpose, and request that Robert sit inside the patrol car. Brown, 345
F.3d at 578. Maddux also had the authority to ask Marco and Courtney, the
passengers, similar questions to verify the information that Robert had provided. Id.
That's exactly what happened here. While talking to Robert about his trip, Maddux
discovered that the van was a rental, that the renter was not present, and that the
additional driver on the rental agreement was not Robert but was Courtney. Once
Maddux heard Robert's answers about the trip, Maddux had the authority to ask the
passengers of the van similar questions. He also had the authority to talk to the listed
driver. Therefore, Maddux's questioning of Marco and Courtney before Maddux
ended the traffic stop for speeding was not an unlawful detention.

      The defendants next contend that once Maddux told Robert that he was free to
go, everything that happened after that point was an unlawful detention. The District
Court rejected this argument and found that when Robert agreed to return to the patrol
car, Robert was not detained because at that point it was a consensual encounter.

                                         -11-
       The Supreme Court has "held repeatedly that mere police questioning does not
constitute a seizure." Florida v. Bostick, 501 U.S. 429, 434 (1991). Indeed, Supreme
Court "cases make it clear that a seizure does not occur simply because a police
officer approaches an individual and asks a few questions. So long as a reasonable
person would feel free 'to disregard the police and go about his business,' California
v. Hodari D., 499 U.S. 621, 628 (1991), the encounter is consensual and no
reasonable suspicion is required. The encounter will not trigger Fourth Amendment
scrutiny unless it loses its consensual nature." Id.; see also Terry v. Ohio, 392 U.S.
1, 19 n.16 (1968) ("Obviously, not all personal intercourse between policemen and
citizens involves 'seizures' of persons. Only when the officer, by means of physical
force or show of authority, has in some way restrained the liberty of a citizen may we
conclude that a 'seizure' has occurred."). The Court has explained "that even when
officers have no basis for suspecting a particular individual, they may generally ask
questions of that individual; ask to examine the individual's identification; and
request consent to search his or her luggage—as long as the police do not convey a
message that compliance with their requests is required." Bostick, 501 U.S. at
434–35 (internal citations omitted).

        We conclude that the District Court had the factual and legal support to hold
that after the traffic stop ended, Maddux's questioning did not constitute a detention
but was merely a consensual encounter between a single officer and three citizens.
Maddux did not use physical force, make a show of authority, or use demanding
language, but simply asked the defendants whether they had unlawful items and
whether they would consent to a search of their bags or the van. As proof that the
defendants could disregard Maddux's questions, both Courtney and Robert exercised
their rights to deny Maddux's requests to search their bags or the van. The defendants
point to Maddux's placing Robert in the back seat of the patrol car as evidence that
Robert was seized. In context, this argument fails. It was a cold day and Maddux
wanted to talk to both Marco and Robert while sitting inside the patrol car, which
could only be accomplished by asking someone to sit in the back seat. And Maddux

                                        -12-
did not order Robert to sit in the back seat, but asked him if he would mind sitting in
the back seat. Robert complied. We conclude that the District Court was not required
to determine that this incident ended the consensual encounter.

      The defendants next argue that the consensual nature of the encounter ended
when Maddux told the defendants that he was bringing a drug-detection dog to
perform a sniff of the van. We reject this argument for two reasons. First, the
defendants rely on Robert's and Courtney's testimony, completely disregarding
Maddux's testimony. According to Maddux, he only informed Marco that Maddux
was going to bring a drug-detection dog to sniff around the vehicle. This statement
was made only after Marco had already consented to a search of his bags and while
the two men were standing behind Maddux's patrol car. Maddux never informed
Courtney that Maddux was going to use a drug-detection dog. Instead, Courtney
consented to a search of the van without reference to a drug-detection dog and based
on Marco's urging, as will be discussed below when we discuss the consent issue.

       Second, the defendants' heavy reliance on United States v. Beck, 140 F.3d 1129
(8th Cir. 1998), does not compel a conclusion that Maddux's statement to Marco
about the drug-detection dog turned the consensual encounter into an investigative
detention. In Beck, we held that a consensual encounter ended when a police officer
informed a citizen, Beck, that if Beck would not consent to a search of his vehicle,
then the officer would use a drug-detection dog to perform a sniff of the vehicle. Id.
at 1135. But see United States v. Alexander, 448 F.3d 1014, 1015–17 (8th Cir. 2006)
(holding that a defendant's Fourth Amendment rights were not violated when an
officer used a drug-detection dog to sniff around a vehicle after the defendant refused
to consent to a search of the vehicle). Our rationale in Beck was that a person who
refuses to consent to a search of a vehicle would not reasonably feel free to leave
once an officer informed the person that the officer would use a drug-detection dog
to perform a sniff of the vehicle. 140 F.3d at 1135–36. We also stated that "any
doubts that Beck had that he was free to drive away were extinguished when, after

                                         -13-
refusing consent to a search of his automobile, [the officer] ordered Beck to get out
of his automobile and to stand on the side of the road" so that the officer could have
his drug-detection dog perform a sniff of the vehicle. Id. at 1136.

       We readily distinguish Beck because Maddux did not use the "threat" of a
drug-detection dog or the delay in bringing a dog to the scene to elicit consent from
Marco to search his bags or from Courtney to search the van. Marco had already
consented to a search of his bags before Maddux mentioned the use of a drug-
detection dog, and Maddux never told Courtney about the use of a drug-detection dog
to gain his consent to search the van. Maddux mentioned the use of a drug-detection
dog to sniff around the van only after he informed Marco that Robert and Courtney
had refused to consent to searches of their bags or the van. Because Marco had
already consented to a search of his bags, any delay in searching his bags was brief
and Maddux would have had the authority anyway to have a drug-detection dog
search the exterior of the van while Maddux searched Marco's bags. See Illinois v.
Caballes, 543 U.S. 405, 406–10 (2005) (holding that the Fourth Amendment is not
violated when police use a drug-detection dog to sniff around the exterior of a vehicle
during a lawful traffic stop lasting less than ten minutes, even when no reasonable,
articulable suspicion of drug activity supports the use of the dog); Alexander, 448
F.3d at 1017 (holding that a four-minute detention from the time the defendant
refused to consent to a search of his vehicle until the time the police officer used a
drug-detection dog to sniff around the vehicle did not violate the defendant's Fourth
Amendment rights). Stated another way, the Fourth Amendment would not have
been violated had another trooper walked a drug-detection dog around the defendants'
van while Maddux searched Marco's bags. We conclude that the District Court did
not err in concluding that the encounter between Maddux and the defendants did not
lose its consensual nature after the traffic stop had ended.




                                         -14-
                                         C.

       The defendants also attack the constitutionality of the search of the van by
arguing that Courtney did not consent to a search of the van, that Courtney consented
only to a search of Marco's bags, that Courtney withdrew his consent once Maddux
began searching the van, and that Maddux's search exceeded the scope of Courtney's
consent. In making these arguments, the defendants again focus on testimony from
the defendants and not from Maddux, even though the District Court clearly favored
Maddux's testimony. The defendants' reliance on rejected testimony bears little
weight on appeal because the District Court's "determination as to the credibility of
a witness is virtually unreviewable on appeal. The assessment of a witness's
credibility is the province of the trial court." United States v. Heath, 58 F.3d 1271,
1275 (8th Cir.) (internal citations omitted), cert. denied, 516 U.S. 892 (1995). In
reviewing the District Court's finding that Courtney voluntarily consented to a search
of the van, we give great weight to the District Court's credibility determinations.

       It is "well settled that one of the specifically established exceptions to the
requirements of both a warrant and probable cause is a search that is conducted
pursuant to consent." Schneckloth v. Bustamonte, 412 U.S. 218, 219 (1973). The
District Court essentially was asked whether the government established "that a
reasonable person would have believed that the subject of a search gave consent that
was the product of an essentially free and unconstrained choice, and that the subject
comprehended the choice that he or she was making." United States v.
Cedano-Medina, 366 F.3d 682, 684 (8th Cir.) (internal citations and quotations
omitted), cert. denied, 543 U.S. 1035 (2004). "In other words, a person can render
a search legal by behaving in a way that would cause a reasonable person to believe
that he or she has knowingly and voluntarily consented, whether or not the person
actually intends to consent." Id. at 684–85. In essence, the Fourth Amendment
requires that an officer reasonably believes that he has received consent to search.
Id. at 685. A court, therefore, must determine "whether the totality of the

                                        -15-
circumstances demonstrates that the consent was voluntary." United States v.
Chaidez, 906 F.2d 377, 380 (8th Cir. 1990) (explaining that courts must look at the
characteristics of the defendant and at the details of the environment in considering
whether the totality of the circumstances shows voluntary consent).

       We have little difficulty concluding that the District Court's finding that
Courtney voluntarily consented to a search of the van was not clearly erroneous.
Courtney, an adult who was listed as the driver on the rental agreement, initially
denied Maddux's request to search the van, showing that Courtney knew that he was
not required to consent to a search. We also note that there is no evidence that
Courtney was under the influence of drugs or alcohol or that Maddux used
intimidation or threats to evoke consent. Instead, the record shows and the District
Court found that Marco, without the aid of Maddux, convinced Courtney to consent
to a search of the van. After Maddux heard Courtney say that he would consent to
a search, Maddux asked Courtney if he really was consenting to a search of the van.
Courtney acknowledged three times that he was indeed consenting to a search of the
van. When these facts are overlain on the District Court's credibility determinations,
we have no choice other than to accept the District Court's finding that Courtney
voluntarily consented to a search of the van. That finding is well within the very
broad discretion of a district court in assessing credibility. See Heath, 58 F.3d at
1275.

                                         III.

      For the foregoing reasons, we affirm the District Court's denial of the
defendants' motions to suppress.
                      ______________________________




                                        -16-
