NONPRECEDENTIAL DISPOSITION
To be cited only in accordance with
Fed. R. App. P. 32.1
United States Court of Appeals
For the Seventh Circuit
Chicago, Illinois 60604
Argued January 26, 2011
Decided February 4, 2011
Before
WILLIAM J. BAUER, Circuit Judge
JOEL M. FLAUM, Circuit Judge
DIANE S. SYKES, Circuit Judge
No. 10‐3019
UNITED STATES OF AMERICA, Appeal from the United States District
Plaintiff‐Appellee, Court for the Southern District of Illinois.
v. No. 3:09CR30181‐001‐DRH
JOSE LUIS CALVO‐SAUCEDO, David R. Herndon,
Defendant‐Appellant. Chief Judge.
O R D E R
Police in southern Illinois stopped Jose Luis Calvo‐Saucedo for a traffic violation and
found almost 10 kilograms of cocaine concealed within the rocker panels beneath the doors
of his car. Calvo entered a conditional guilty plea to possession with intent to distribute,
see
21 U.S.C. § 841(a)(1), reserving the right to challenge on appeal the denial of his motion
to suppress. The district court concluded that the roadside search was conducted with
probable cause and consent, but Calvo argues that (1) probable cause was lacking until an
officer pried up a strip of interior molding that covered a rocker panel and punctured a
package of cocaine, and (2) the removal of the molding exceeded the scope of his oral
consent. The court’s finding of consent is not clearly erroneous, and we agree with the
determination of probable cause. We thus affirm the judgment.
No. 10‐1995 Page 2
Calvo was alone in a 4‐door, 2003 Pontiac Grand Am when he was stopped on
Interstate 55 by Kevin Thebeau, a Granite City police officer, and his partner, Todd Husky, a
Troy police officer. Both officers are assigned to a DEA task force and devote their time to
drug interdiction on the interstate. In moving to suppress, Calvo conceded that he gave
Officer Thebeau valid, oral consent to search the car. For purposes of this appeal, moreover,
Calvo concedes that police had probable cause to search his car, including by intrusive
means, the minute that suspected cocaine was discovered under the molding. Accordingly,
this appeal turns on whether Thebeau had a legal entitlement to pry up the molding, either
because he already had probable cause to search or because that action was within the scope
of Calvo’s consent.
At the suppression hearing, Officer Thebeau testified that he first became suspicious
when he saw Calvo, whose car was ahead of the officers, reach several times for an object
inside the vehicle. The Grand Am then veered sharply to the right off the roadway to reach
a missed exit ramp, so Thebeau and his partner stopped Calvo for improper lane usage.
When Thebeau approached the passenger side of the Grand Am and motioned for Calvo to
roll down the front passenger window, he noticed that Calvo was unshaven and dirty, his
hands were shaking, and he had difficulty finding the switch to lower the window. A
Mexican passport and cigarette packages with Spanish labeling were visible on the front
seat, the interior of the car was cluttered and littered with fast‐food wrappers, and the key
in the ignition was on a ring by itself. After Calvo opened the window, Thebeau detected a
strong chemical odor similar to silicone caulk, though nothing on the car appeared to have
been recently repaired. Thebeau had been trained that a single key could mean that the
vehicle was a drug courier’s “drop car” which could be left with its cargo at the delivery
point for someone else to retrieve, and he suspected that the chemical agent either was
being used to mask the smell of drugs or else was emanating from material used to seal off
compartments hiding drugs. Thebeau eventually learned that Calvo had a valid Indiana
driver’s license and a registration in his name for the car, but as the stop unfolded Thebeau
observed that Calvo was fidgeting and apparently was so nervous that his breathing was
labored. Calvo explained that he was on his way home after visiting a friend in St. Louis,
but Thebeau thought the passport and cigarettes undercut that story. Even when Thebeau
had returned to his car after telling Calvo that he would issue only a warning for the traffic
violation, Calvo kept looking in the mirror and turning around to watch the officers.
Thebeau handed Calvo a written warning. He then asked Calvo if there were
“illegal narcotics or large sums of currency” in his car, and Calvo said no. Thebeau then
asked to search the Grand Am, making sure to inquire whether Calvo understood the word
“search,” since Calvo had said that he speaks Spanish and only limited English. Calvo gave
permission to search. During the search Thebeau used a pocket knife to pry off a strip of
No. 10‐1995 Page 3
interior molding (Thebeau characterized the molding as a “rubber strip” during the
suppression hearing) that covered the rocker panel under the front passenger door. Rocker
panels, essentially the frame of the car below the doors, are hollow, and on that model of
Grand Am, strips of molding cover the interior surface of the rocker panels and are held in
place with small clips that snap into holes in the panel. Thebeau had pried up similar
moldings “hundreds” of times before after learning that drugs sometimes are concealed in
the void created by a rocker panel, and he maintained that this action had not damaged the
Grand Am. When Thebeau peered into one of the holes where a clip for the molding had
been, he saw what appeared to be cloth instead of empty space. Thebeau poked his knife
into the hole and through the material, and withdrew white powder—cocaine—on the
blade. All the while, according to Thebeau, Calvo was standing in view with Officer Husky
but said nothing while watching Thebeau remove the molding and explore underneath.
Once the powder was discovered, Thebeau and his partner obtained Calvo’s written
consent (in both Spanish and English) to a more‐invasive search. The police then towed the
car, cut open the rocker panels, and found cocaine under all four doors. Hidden
compartments accessible from under the car had been sealed with red “bondo,” and the
car’s exterior molding had been reattached with a silicone adhesive.
Calvo was the only other witness at the suppression hearing. He answered two
questions: On direct examination he testified that he saw “very little, almost nothing” of the
search Officer Thebeau had conducted on the passenger side, and on cross he conceded that
he “never said anything” as Thebeau worked.
The district court denied the motion to suppress, concluding that Thebeau had
probable cause to search the car—especially in light of his experience and training with
drug enforcement—based on Calvo’s appearance and behavior, the items in the vehicle, and
the smell of silicone. The court also concluded that, even if there wasn’t probable cause,
removal of the molding to search inside the rocker panel was within the scope of Calvo’s
consent. The court found that Calvo had witnessed the entire search, including the removal
of the molding, but never voiced any objection or hinted that his consent had been
exceeded. The court also found that Calvo had not proved that Thebeau damaged his car.
On appeal Calvo argues that the search exceeded the scope of his consent. We
disagree. The district court found that, even if Calvo’s initial consent was somehow limited
in scope, he agreed to broaden his consent to include the removal of the molding by
watching but failing to protest Officer Thebeau’s actions. That finding is not clearly
erroneous; Thebeau testified that Calvo became more nervous as he searched near the
rocker panel, and the burden was on Calvo to limit the scope of his consent. See United
States v. Patterson,
97 F.3d 192, 195 (7th Cir. 1996); United States v. Stribling,
94 F.3d 321, 324
(7th Cir. 1996); see also United States v. Mayo,
627 F.3d 709, 714‐15 (8th Cir. 2010) (upholding
No. 10‐1995 Page 4
search that included prying open door panels when defendant did not protest); United States
v. Gregoire,
425 F.3d 872, 880‐81 (10th Cir. 2005) (upholding search that included drilling
holes and prying away portion of vehicle’s undercarriage when defendant did not protest);
United States v. Marquez,
337 F.3d 1203, 1208‐09 (10th Cir. 2003) (upholding prying up
nailed‐down plywood when defendant did not protest).
Moreover, even if Calvo could not see Officer Thebeau’s search, lifting the molding
was within the scope of Calvo’s initial consent. When a person is informed that an officer is
looking for drugs in his car and he gives consent without explicit limitation, the consent
permits law enforcement to search inside compartments and containers within the car, so
long as the compartment or container can be opened without causing damage. See Florida v.
Jimeno,
500 U.S. 248, 251‐52 (1991); United States v. Siwek,
453 F.3d 1079, 1085 (8th Cir. 2006);
United States v. Garrido‐Santana,
360 F.3d 565, 576 (6th Cir. 2004); United States v. Torres,
32
F.3d 225, 232 (7th Cir. 1994). Calvo tries to equate this search to the conduct in United States
v. Garcia,
897 F.2d 1413, 1419‐20 (7th Cir. 1990), where we concluded that a general consent
did not extend to dismantling a car door to remove drugs inside, but that decision is
distinguishable. At the suppression hearing Calvo tried to establish that Thebeau had
damaged the molding by removing it, but the district court concluded that the evidence did
not support that assertion. That finding is not clearly erroneous; at the suppression hearing,
Calvo presented Thebeau with a photo that Calvo claimed showed damage to the molding,
and—although Thebeau agreed that the backside of the molding in the picture looked
slightly damaged—he expressly denied that he damaged the molding during the search and
said that he could not even tell whether the photo depicted the same molding. Therefore,
the officer’s actions were within the scope of what a reasonable motorist would expect after
giving general consent to search a car for contraband. See United States v. Garcia,
604 F.3d
186, 190‐91 (5th Cir. 2010) (upholding removal of speaker cover secured by screws); Siwek,
453 F.3d at 1085 (upholding use of wire probe to search inside drain hole because any
damage caused was de minimis); Garrido‐Santana,
360 F.3d at 576 (upholding search of gas
tank); Torres,
32 F.3d at 232 (upholding search where police unscrewed six screws to look
inside wooden box).
Calvo’s remaining argument about probable cause poses a closer question. Calvo
contends that Officer Thebeau lacked probable cause to search before he removed the
molding and looked inside the rocker panel. When there is probable cause to believe that a
car contains contraband or evidence of criminal activity, police may conduct a warrantless
search of any area where the items might be found. Arizona v. Gant,
129 S. Ct. 1710, 1721
(2009); United States v. Nicksion, Nos. 09‐3732 & 09‐3755,
2010 WL 4978819, at *6 (7th Cir.
Dec. 6, 2010). Authorities have probable cause if, based on the totality of circumstances,
there exists a fair probability of findings the items. Illinois v. Gates,
462 U.S. 213, 238 (1983);
United States v. Zahursky,
580 F.3d 515, 521 (7th Cir. 2009). Here, not only was Calvo
No. 10‐1995 Page 5
excessively nervous during the traffic stop and disheveled in appearance, but there were
other signs that supported Thebeau’s conclusion that Calvo was smuggling drugs from
Mexico: the strong smell of silicone, known to Thebeau as a masking agent for the smell of
drugs or a sealant for hidden compartments, the ignition key alone on the ring, and the
items in the car that cast doubt on Calvo’s story about traveling from St. Louis. Although
these factors at least give rise to reasonable suspicion, see United States v. Mason, No. 07‐
4900,
2010 WL 4977817, at *4 (4th Cir. Dec. 8, 2010); United States v. Faison,
195 F.3d 890, 894
(7th Cir. 1999), in most instances where probable cause has been found on analogous facts
there have been more‐obvious signs of a hidden compartment, see United States v.
Banuelos‐Romero,
597 F.3d 763, 767‐69 (5th Cir. 2010); United States v. Ledesma,
447 F.3d 1307,
1316‐19 (10th Cir. 2006); United States v. Anderson,
114 F.3d 1059, 1066 (10th Cir. 1997);
United States v. Inocencio,
40 F.3d 716, 723‐24 (5th Cir. 1994). Still, the absence of any single
factor is not determinative, see Faison,
195 F.3d at 894, and we agree with the district court
—even without telling indicia of a hidden compartment—that this collection of seemingly
innocent factors, combined with Thebeau’s training and experience, gave rise to probable
cause to search the Grand Am. See United States v. Castelo,
415 F.3d 407, 412 (5th Cir. 2005)
(upholding search based on alteration of registration, dubius story, nervousness, lack of seal
on trailer, and connection to “source city” for drugs); United States v. Saucedo‐Munoz,
307
F.3d 344, 350‐51 (5th Cir. 2002) (upholding search based on nervousness, inoperable gas
gauge, and short time before running out of gas, which the officer knew were signs that
drugs may be hidden in gas tank); Faison,
195 F.3d at 894 (upholding search based on odor
of bug spray, known to police as a masking agent for smell of drugs, along with driver’s
agitation, sloppy trucking paperwork, and lie about carrying cargo); see also Gates,
462 U.S.
at 243 n.13 (noting that “innocent behavior frequently will provide the basis for a showing
of probable cause”); United States v. Funches,
327 F.3d 582, 587 (7th Cir. 2003) (“[T]he mere
existence of innocent explanations does not necessarily negate probable cause . . . .”); United
States v. Gil,
58 F.3d 1414, 1418 (9th Cir. 1995) (“[O]bservations of conduct consistent with
drug trafficking, even though apparently innocuous, can give rise to probable cause.”).
AFFIRMED.
