Consent Searches Scope
Holcomb, Jayme Walker, The FBI Law Enforcement Bulletin
A law enforcement officer asks a woman if she will consent to a search of her luggage for drugs. After the woman consents to the search, the officer finds a sealed can labeled as vegetables that, when shaken, feels as if it contains no liquid. The officer promptly opens the can with a can opener and discovers a white powdery substance, later identified as cocaine, inside. Did the officer exceed the scope of the woman's consent to search by prying open the can?
The Fourth Amendment preserves the "right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures." (1) The U.S. Supreme Court has stated that a search conducted pursuant to lawfully given consent is an exception to the warrant and probable cause requirements of the Fourth Amendment. However, because a consensual search of an item or location is still a search, the Fourth Amendment reasonableness requirement still applies. (2)
This article considers the question of whether the officer's opening of the can in the example violated the Fourth Amendment. The article also addresses the standard that courts apply in determining the scope of a consent search, officer statements and actions that impact upon scope, subject statement and actions that impact upon scope, and scope-related issues, such as reasonableness and the damaging or destruction of property during a consent search.
The U.S. Supreme Court addressed the issue of the scope of a consent search in the 1991 decision Florida v. Jimeno. (3) In Jimeno, an officer overheard Jimeno apparently arranging a drug transaction over a public telephone. The officer followed Jimeno's car and pulled him over after observing him commit a traffic violation. The officer told Jimeno he had reason to believe that Jimeno had narcotics in his car. The officer asked for consent to search Jimeno's car. Jimeno consented to the search. The officer found a folded brown paper bag on the passenger side floorboard. The officer picked up the bag, looked inside, and found a kilogram of cocaine.
The Court specifically addressed the question of whether consent to search a vehicle may extend to closed containers located in the vehicle and stated:
The touchstone of the Fourth Amendment is reasonableness. The Fourth Amendment does not proscribe all state-initiated searches and seizures; it merely proscribes those which are unreasonable. Thus, we have long approved consensual searches because it is no doubt reasonable for the police to conduct a search once they have been permitted to do so. 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? (4)
In holding that Jimeno's general consent to search the car included consent to search the paper bag, the Court found it important that the officer said he was looking for narcotics and that Jimeno placed no explicit limitation on the search. The Court rejected the argument that police should have to separately ask permission to search each closed container within a car under such circumstances. However, the Court distinguished Jimeno from another case decided by the Supreme Court of Florida where that court held that consent to search a car trunk did not include prying open a locked briefcase in the trunk, stating that
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, but it is otherwise with respect to a closed paper bag. (5)
As stated by the Court, the standard for measuring the scope of a person's consent to a search is one of objective reasonableness. …