Scope of the Search Consent and Warrant Searches Cases

Whether a family member or you personally have been handed a search warrant or consented to a search, the “scope of the search” is an important issue to consider. The scope of the search is basically any limitation stated in the search warrant or consent to search form that must be adhered to by the police. Anything exceeding the bounds of that scope is unreasonable.

Traditional search warrants are warrants issued by judges upon a showing of probable cause to either search a person’s home or vehicle. Sometimes police may seek permission to enter a person’s home to execute an actual arrest warrant to search for the person, sometimes referred to as a “body warrant”. However, the consent to enter a house to execute an arrest warrant does not give the police the authority to search the house after the person has been taken in custody. See State v. Johnson 365 N.J. Super 27, (App. Div 2003). This is important to know, because police will often snoop around the house once they gain entry. A traditional search warrant for a house or vehicle must specifically state the following: location to be searched, the area within that location, the date and time, duration, and specify which police officers are authorized to conduct the search. Any search executed outside the listed parameters stated in the search warrant could violate the scope of the search.

Often, people are pressured by police to consent to a search of their property instead, to circumvent the 4^th amendment, because the police either do not have the probable cause needed to get a judge’s approval for a search warrant or they are just too lazy to follow protocol. Though there are similarities, there are also differences between consent waivers and search warrants. The first thing to know is that a person may limit the scope of a consent search. “A consent search is reasonable only if kept within the bounds of the actual consent.” Honig v. United States, 203 F.2.d 916, 919 (8^th Cir. 1952). Consent is a waiver of the right to demand that the police obtain a warrant to justify their search. The need for a warrant is waived only by the conditions expressed by the person in his consent. Therefore, an individual may limit the scope of a warrantless search in the same manner that a search warrant is limited by its stated terms. For example, in the case of United States v. Dichiarinte, 445 F.2.d 126 (C.A. 7 (Ill) 1971), the police exceeded what was necessary to determine whether the defendant had hidden narcotics in his personal papers. The police read these papers to determine if they provided any clues that the defendant was engaged in criminal activity. The court in U.S v. Dichiarinte, held that the search was unreasonable because even a search warrant authorizing seizure of narcotics would not give agents the power to read a defendant’s personal papers. See Woo Lai Chun v. United States, 274 F.2.d. 708 (9^th Cir. 1960).Also, where consent is given by the owner of a home to search rooms occupied by another, the consent cannot not go beyond items in plain view to closed containers or other areas in which only the occupant has an ownership or privacy interest. See State v. Younger, 305 N.J. Super. 250, (App. Div. 1997).

Another issue is that the scope of the search is limited by the stated object of the search. See Florida v. Jimeno, 111 S. Ct. 1801, 500 U.S. 248 (U.S. Fla. 1991) and State v. Younger, 305 N.J. Super. 250, (App. Div. 1997). The standard for evaluating the scope of a person’s consent under the 4^th amendment is the issue of “objective” reasonableness.

The question is: what would the average reasonable person have understood from the conversation between the officer and the suspect? See Illinois v. Rodriquez, Supra at 183-189, 110 S.Ct. at 2798-2802 and Florida v. Royer, 460 U.S. 491 (1983). For example, in State v. Younger the police were looking for a gun but searched a coin purse and found narcotics. “The scope of the search is defined by its expressed object.” United States v. Ross, 456 U.S. 798, 102 S.Ct. 2157, 72 L.E.d 2c. 572 (1982). Therefore, it is unreasonable to search for an object that is larger than the container the police are looking in, because an item like a gun could not possibly fit in a small container like a coin purse. The officer himself may also limit the scope of a consent search through his words by what he or she claims to be the intended purpose behind the search. And the officer must give the suspect the right to terminate the consent search at any time. See State v. Leslie, 338 N.J. Super. 269, 273 (App. Div. 2001); State v. Santana, 215 N.J. Super. 63, 72-73 (App. Div. 1987).

Regarding consent searches of vehicles, the case of Florida v. Jimeno 111 S. Ct. 1801, 500 U.S. 248 (U.S. Fla. 1991) is important to consider when it comes to closed containers inside the vehicle. In situations where a person has a locked container within the vehicle, consent to search the container is not implied simply by giving consent to search the vehicle itself. An individual has a heightened expectation of privacy in the contents of a closed container. See United States v. Chadwick, 433 U.S. 1 97 S.Ct.2476 (1977). By placing his possession inside a container, an individual asserts an intent that his possessions be “perceived as private”. Katz v. United States, 389 U.S. 347, S.Ct. 507 (1967) and kept “free from public examination”. United States v. Chadwick, 433 U.S. 1 97 S.Ct.2476 (1977). The distinct privacy expectations that pertain to a vehicle as opposed to a closed container do not merge when the person uses his vehicle to transport the container. See Robbins v. California, 453 U.S. 420 (1979). Though the defendant lost because the narcotics were found in an unlocked paper bag, Florida v. Jimeno made the distinction between a locked briefcase and a paper bag. The inference being that a consent to search the vehicle itself may not apply to locked containers within, if they are not expressly mentioned in the consent form or verbally. Consent forms also have check boxes where you can either assert or waive your right to be present during the search. Another violation of the scope, for example, would be if they conducted a search outside your presence, as in the case of State v. Hampton, 333 N.J. Super. 19, (App. Div. 2000), where a car stopped for a traffic violation was illegally searched after being towed to a separate location in order to search the trunk an hour later outside the defendant’s presence. Also, a driver's implied authority to consent to a search of a car does not include permission to search the personal belongings of other passengers which he does not have ownership. See State v. Suazo, 133 N.J. 315, 321 (1993); and State v. Walker, 282 N.J. Super. 111, 116 (App. Div. 1995). One misconception that should be mentioned is that people often think that police cannot search behind door panels or other hidden compartments of a vehicle. This is not true. According to State v. Powell, 294 N.J. Super. 557, 563 (App. Div. 1996), in the absence of any verbal limitation expressed by the officer, a consent form that authorizes a "complete" search of "compartment" areas of a vehicle gives the police free reign to search the entire vehicle, including such hidden areas, like behind the door panels.

In conclusion, even though a search warrant is issued or a consent to search is granted, it does not necessarily mean that physical evidence obtained in that search is admissible in court, if the search did not adhere to the terms and conditions specified in the warrant or consent waiver.