Majority
OPINION OF THE COURT
The question presented by this appeal is whether a police officer may conduct a destructive search of an automobile based on a suspect’s general consent to search. We conclude as a matter of law that the search here exceeded the scope of defendant’s consent.
Just past midnight on September 27, 2001, Sergeant William Planeta and his partner, Officer Joseph Agresta, spotted a black 1993 Honda with tinted windows. A computer check on the car failed to turn up any negative information. After following the car for approximately 20 blocks, the officers pulled it over for excessively tinted windows—a violation of Vehicle and Traffic Law § 375 (12-a) (b). While his partner spoke with defendant driver, Planeta approached the vehicle, looked through the passenger window and then, as was his custom in car stops, inspected the undercarriage of the car for evidence of a hidden compartment. As Planeta testified, based on his expertise in
Planeta, upon his inspection, noticed a fresh undercoating around the gas tank. Meanwhile, defendant handed Agresta the relevant documents which revealed a tampered registration card. The word “Company” had been removed from the name on the registration card so that it read “Anna Teodora Fermin” rather than “Anna Teodora Fermin Company.” The darkly tinted windows, fresh undercoating near the gas tank and altered registration led Planeta, who had been involved in other narcotics arrests, to suspect that the vehicle may have been used to transport drugs. Planeta then asked defendant whether he had “[g]uns, knives, cocaine, heroin, [or] marijuana,” to which defendant responded “No.” Planeta followed this question with a request for consent to search the car, which defendant gave.
Upon obtaining consent to search, Planeta directed defendant and the passenger to the rear of the car, where the two officers patted them down and instructed them to sit on the rear bumper and wait. Planeta immediately went to the rear seat, unlocked it and pulled it back. He observed gray “non-factory” carpet in the location above the area where he earlier spotted fresh undercoating. He then pulled up the glued carpeting and discovered a cut in the floorboard. Planeta used his pocket knife to twist open the sheet metal. After struggling to reach what he thought was a plastic bag, Planeta returned to his cruiser and retrieved a crowbar, which he used to pry open part of the gas tank. The officers ultimately recovered seven bags of cocaine weighing approximately l[3] !2 pounds from the compartment found in the gas tank.
Arrested and issued a summons for illegally tinted windows and an expired inspection sticker, defendant was subsequently indicted for criminal possession of a controlled substance in the first and third degrees and criminal possession of a forged instrument in the second degree.
Defendant moved to suppress the drugs claiming that there had been no voluntary consent to search the car and that, even if there were, the search exceeded the scope of the consent.[3] Supreme Court denied the motion after a hearing, finding that
Defendant was convicted on his guilty plea of criminal possession of a controlled substance in the second degree. In affirming defendant’s conviction, the Appellate Division left undisturbed the credibility determinations of the suppression court and agreed that defendant’s consent was voluntary. The Court further concluded that the officer did not exceed the scope of defendant’s consent in light of “defendant’s failure to place any limitations on the search, and his failure to object to the search as it was conducted” ( 11 AD3d 333 , 334 [1st Dept 2004]). The Court did not address the alternative grounds relied on by the suppression court in denying the underlying motion. We now reverse and remit the matter to the Appellate Division to address the remaining issues.
“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 US 248 , 251 [1991] [citations omitted].) In Jimeno, the United States Supreme Court held that when an officer explains that he is searching for narcotics, a general consent to search a car permits examination of a folded brown paper bag on the floor of the vehicle (see Jimeno, 500 US at 251 ). The Court noted, however, 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” (Jimeno, 500 US at 251-252 ).
Relying on Jimeno, the Second Circuit has held that “[b]ased on the plain meaning of the word ‘search,’ an individual who consents to a search of his car should reasonably expect that readily-opened containers discovered inside the car will be opened and examined” (United States v Snow, 44 F3d 133 , 136 [1995]). Here, however, the challenged police action went beyond the inspection of a paper bag or a readily opened container. Here the officer damaged the vehicle by removing attached carpeting and physically altering sheet metal with a crowbar.
In determining the scope of consent, a suppression court must look to the exchange between the parties—both the request and the response—and any attendant circumstances to determine whether a suspect was reasonably put on notice that the search would likely cause damage. Once a search exceeds the objectively reasonable scope of a voluntary consent, a more specific request or grant of permission is needed, in the absence of probable cause, in order to justify damage to the searched area or item sufficient to require its repair.
We cannot agree with the dissent that Fourth Amendment jurisprudence must strive to avoid rules. In addition to providing the rationale for resolution of particular cases, rules give necessary guidance to lower courts and to police. Police officers are well served when they are advised, in advance, as to whether their proposed conduct will be lawful. For this reason, we today set forth a standard that both provides guidance and retains flexibility. It is the dissent that insists on brightening this principle into what it characterizes as a “bright-line rule[]” (dissenting op at 421).
The dissent, moreover, confuses two completely different questions—the reasonableness of a search and the scope of consent. We do not suggest “that a ‘damaging’ search is per se unreasonable” (id. at 423)—we leave it to the Appellate Division to review the reasonableness of the search under the probable cause standard. We conclude only that it was unreasonable for the police
Although the search here exceeded the scope of defendant’s consent, we express no opinion as to whether the search was otherwise supported by probable cause, since regrettably the Appellate Division did not review the factual findings of the suppression court on this issue (see CPL 470.15).
Accordingly, the order of the Appellate Division should be reversed and the case remitted to that Court for consideration of issues raised but not determined on the appeal.
Read, J. (dissenting). The majority today holds that a search exceeds the scope of a defendant’s consent as a matter of law whenever it “impairs the structural integrity of a vehicle or . . . results in the vehicle being returned in a materially different manner than it was found” unless there is probable cause or “a more specific request or grant of permission ... to justify [any] damage to the searched area or item sufficient to require its repair” (majority op at 420). Because the Supreme Court has “consistently eschewed bright-line rules” (Ohio v Robinette, 519 US 33 , 39 [1996]) in Fourth Amendment contexts, including consent searches (see id.; see also Florida v Jimeno, 500 US 248 , 250 [1991]), I respectfully dissent.
“[T]he touchstone of the Fourth Amendment is reasonableness,” not bright-line rules (Ohio v Robinette, 519 US at 39 , quoting Florida v Jimeno, 500 US at 250 [internal quotation marks omitted]). “Reasonableness, in turn, is measured in objective terms by examining the totality of the circumstances” (Ohio v Robinette, 519 US at 39 ; see also United States v Drayton, 536 US 194 , 206-207 [2002]; Schneckloth v Bustamonte, 412 US 218 , 232-233 [1973]).
The United States Supreme Court’s decision in Jimeno is the key precedent addressing the permissible scope of consent searches of automobiles, as the majority would seem to acknowledge. In that case, police officers, after having obtained consent to search Jimeno’s car for narcotics, found cocaine in a folded paper bag lying on the floor of the front-seat passenger’s side (see Florida v Jimeno, 500 US at 249-250 ). The Florida state courts suppressed the narcotics, applying “a per se rule that consent to a general search for narcotics does not extend to sealed containers within the general area agreed to by the defendant” (id. at 250 [internal quotation marks omitted]). Notably, the Supreme Court rejected the per se approach of the Flor
In rejecting application of a per se rule, the Jimeno court explained that “[t]he Fourth Amendment is satisfied when, under the circumstances, it is objectively reasonable for the officer to believe that the scope of the suspect’s consent permitted him to open a particular container within the automobile” (id. at 249). The scope of a suspect’s consent hinges on “what would the typical reasonable person have understood by the exchange between the officer and the suspect” (id. at 251). Further, “[t]he scope of a search is generally defined by its expressed object” (id.).
Similar to Jimeno, Sergeant Planeta preceded his request to search by asking defendant whether he had any narcotics or weapons in the car. As the Jimeno court pointed out, “[contraband goods rarely are strewn across the trunk or floor of a car” (id. [internal quotation marks omitted]). Because “[a] reasonable person may be expected to know that narcotics are generally carried in some form of a container,” it was therefore “objectively reasonable for the police to conclude that the general consent to search respondent’s car included consent to search containers within that car which might bear drugs” (id.).
Parallel considerations apply here. Drug dealers have grown more sophisticated in their efforts to hide contraband since— indeed, perhaps in response to—Jimeno. Narcotics are nowadays frequently concealed in compartments hidden within fuel tanks (see United States v Flores-Montano, 541 US 149 , 153 [2004] [noting “evidence that smugglers frequently attempt to penetrate our borders with contraband secreted in their automobiles’ fuel tank”]). So, just as “it was objectively reasonable for the police to conclude” in Jimeno that they had consent to search any containers in the car “which might bear drugs” (Florida v Jimeno, 500 US at 251 ), it was objectively reasonable in this case for Sergeant Planeta to believe that he had permission to search any area of defendant’s car in which narcotics might be secreted. To support its observation that “[t]he scope of a search is generally defined by its expressed object” (id.), the Jimeno court cited United States v Ross ( 456 US 798 [1982]), which held that a warrantless search of a car premised r ot on consent but instead on probable cause—a comparable exception to the warrant requirement—“justifies the search of every part of the vehicle and its contents that may conceal the object of the search” (United States v Ross, 456 US at 825 ).
Here, Sergeant Planeta initially gained access to the hidden compartment by widening a preexisting (and suspicious) hole in the floorboard enough to allow the insertion of a pocketknife (compare United States v Flores-Montano, 541 US at 155 [holding that disassembling gas tank during border search does not contravene the Fourth Amendment because it “involves a brief procedure that can be reversed without damaging the safety or operation of the vehicle” and also leaving open the question of the reasonableness of “potentially destructive drilling” (id. at 154 n 2)]; see also Carroll v United States, 267 US 132 [1925] [warrantless search of car for liquor based on probable cause allowed federal agent to rip open upholstery of car seat]).
The majority’s conclusion that a “damaging” search is per se unreasonable is premised largely, if not entirely, on dictum in Jimeno that “ [i]t is very likely unreasonable to think that a suspect, by consenting to a search of his trunk, has agreed to the breaking open of a locked briefcase within the trunk” (majority op at 419, quoting Florida v Jimeno, 500 US at 251-252 ). The Jimeno court made that remark when distinguishing a case, State v Wells ( 539 So 2d 464 [Fla 1989], affd on other grounds 495 US 1 [1990]), “on which the Supreme Court of Florida relied in affirming the suppression order in” Jimeno ( 500 US at 251 ). Any unreasonableness in Wells, however,
1 In this case, the suppression court described the compartment as a separate area welded inside the gas tank with a hinged door operated by a piston attached to the floor with a U-shaped clamp with a belt through it.
Thus, Wells (and, by extension, the Jimeno court’s dictum regarding Wells) is not relevant to this case. Unlike Wells, the consent search here was conducted contemporaneously with defendant’s granting of consent and in his presence. The police did not open something in which defendant might argue that he had a potentially greater privacy interest than he had in the car itself.[4]
Even if the culmination of the search (i.e., the officer’s use of the crowbar) exceeded defendant’s initial expectations, the Fourth Amendment is satisfied under the totality of the circumstances. In other words, the majority is just wrong to conclude that, as a matter of Fourth Amendment principles, a search resulting in “damage”[5] is per se outside the scope of a general consent. The record of the suppression hearing reveals that de
2 The other case cited hy the majority, United States v Snow ( 44 F3d 133 [1995], supra), is likewise inapposite. The majority apparently reads Snow as standing for the proposition that consent to a car search extends only to “readily-opened” objects and no further (majority op at 419, quoting United States v Snow, 44 F3d at 136 ). The Second Circuit, however, simply concluded that—despite the Jimeno court’s observation that a search’s scope is defined by its expressed object—the failure to inform a suspect of the object of a search did not place contraband discovered in closed bags in the car outside the scope of the suspect’s consent (see id. at 134-135 ). Thus, Snow does not address the issue presented on this appeal: whether it is objectively reasonable for a suspect fully aware of the object of a search to expect that the searching officer will search “every part of the vehicle and its contents that may conceal the object of the search” (United States v Ross, 456 US at 825 ). Indeed, the Snow court pointed out that, in light of the rather uninformed consent there, “[w]e . . . express no view on whether Snow’s consent would have extended to items like locked briefcases” (United States v Snow, 44 F3d at 135 ). The Snow court also noted that “the term ‘search’ implies something more than a superficial, external examination. It entails ‘looking through,’ ‘rummaging,’ ‘probing,’ ‘scrutiny,’ and ‘examining internally’ ” (id.). Subsequent to Snow, the Second Circuit held that a suspect’s consent to a bag search (premised on not much more of an expressed object than in Snow) encompassed allowing a police officer to pull apart a sneaker with a false bottom found in the bag (United States v Mire, 51 F3d 349 , 351-352 [2d Cir 1995]).
3 The suppression court found that the damage to the car in this case was “limited and reasonably necessary to gain access to the gas tank area which was the focus of the search.”
In light of the totality of the circumstances just described, it was objectively reasonable for Sergeant Planeta to believe that the scope of defendant’s consent encompassed the actions he took to search the area of the car above the hidden compartment. As the Jimeno court pointed out, “[a] suspect may of course delimit as he chooses the scope of the search to which he consents” (Florida v Jimeno, 500 US at 252 ). Here, defendant never did. I therefore agree with both the suppression court and the Appellate Division that defendant’s silence in the face of Sergeant Planeta’s evolving actions constituted consent to the search as conducted.
Although the majority would require “a more specific request or grant of permission” (majority op at 420), that is not what the Fourth Amendment commands. Indeed, the Supreme Court has found “no basis for adding this sort of superstructure to the Fourth Amendment’s basic test of objective reasonableness” (Florida v Jimeno, 500 US at 252 ). Because defendant’s “consent would reasonably be understood to extend to [what occurred here], the Fourth Amendment provides no grounds for requiring a more explicit authorization” (id.).
Of course, the majority’s new rule may have no practical consequences for this particular case. Whether it does or not will depend upon the outcome of the Appellate Division’s review of the suppression court’s factual findings related to probable cause. I wonder, though, how law enforcement officers will approach the consent search of a vehicle in the future. The majority has fixed the boundary line separating a reasonable from a “damaging” search for which more specific consent is required at the point where police actions impair the structural integrity
Chief Judge Kaye and Judges G.B. Smith, Rosenblatt, Graffeo and R.S. Smith concur with Judge Ciparick; Judge Read dissents in a separate opinion.
Order reversed, etc.
Footnotes
- 1 On this appeal, defendant does not contest the voluntariness of his consent to search the vehicle but contests only the scope of his consent. We *419 note that the Appellate Division did not disturb the suppression court’s finding of consent to search—a finding that is supported by the record.
- 2 Since the search as a whole, including the use of a crowbar to pry open the gas tank, clearly exceeded the scope of the consent, we need not decide whether pulling up the carpet and twisting a knife in the floorboard opening were in themselves beyond that scope.
Cases cited
- People v. Gonzalez 39 NY2d 122 p. 417
- Bumper v. North Carolina 391 US 543 p. 417
- People v. Mitchell 211 AD2d 553 p. 417
- Florida v. Jimeno 500 US 248 at 251, at 250 p. 417, p. 419, p. 421
- People v. Bryant 245 AD2d 1010 p. 417
- People v. Andeliz 3 Misc 3d 384 p. 417
- People v. Ingle 36 NY2d 413 p. 417
- People v. Battaglia 86 NY2d 755 p. 417
- People v. Hollman 79 NY2d 181 p. 417
- People v. Barreras 253 AD2d 369 p. 417
- People v. Rizzo 40 NY2d 425 p. 417
- People v. Shabazz 99 NY2d 634 p. 417
- People v. Valerio 95 NY2d 924 p. 417
- People v. Carvey 89 NY2d 707 p. 417
- Ohio v. Robinette 519 US 33 at 39 p. 421
- United States v. Drayton 536 US 194 at 206-207 p. 421
- Schneckloth v. Bustamonte 412 US 218 at 232-233 p. 421
- United States v. Flores-Montano 541 US 149 at 153 p. 422
- United States v. Ross 456 US 798 p. 422
- Carroll v. United States 267 US 132 p. 423
- Florida v. Wells 495 US 1 p. 423