Wednesday, October 26, 2005

Court of Appeals: consent to "search" car does not equal consent to "destroy car with crowbar"

People v Gomez, 2005 WL 2759218, 2005 NY Slip Op 07828

In a decision handed down yesterday, the Court of Appeals holds that a police officer may not "conduct a destructive search of an automobile based on a suspect's general consent to search." (People v Gomez, 2005 WL 2759218, 2005 NY Slip Op 07828 [available here].) The police in Gomez pulled over defendant because his car had an excessive amount of window tinting. After stopping the car, the officers asked defendant if they could search the car; defendant said sure (apparently forgetting that he was in the process of transporting 1 1/2 pounds of cocaine). The Court described the search:

[The officer] 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. [The officer] used his pocket knife to twist open the sheet metal. After struggling to reach what he thought was a plastic bag, [the Officer] 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 1 1/2 pounds from the compartment found in the gas tank.


After noting the Supreme Court's standard for "'measuring the scope of a suspect's consent under the Fourth Amendment'"--i.e. "what would the typical reasonable person have understood by the exchange between the officer and the suspect," (See Florida v Jimeno, 500 US 248, 251 [1991]), the Court of Appeals found that the officers' actions in Gomez exceeded defendant's consent as a matter of law:

In the absence of other circumstances indicating that defendant authorized the actions taken by police, a general consent to search alone cannot justify a seizure that impairs the structural integrity of a vehicle or that results in the vehicle being returned in a materially different manner than it was found. A reasonable person would not have understood the officer's request to search to include prying open a hole in the floorboard and gas tank with a crowbar. Here, the officer clearly crossed the line when he took his action without first obtaining defendant's specific consent.


This is a welcome, common-sense outcome--it seems relatively obvious that a motorist who gives the police consent to search his vehicle does not imply consent to the police ripping apart his car with a crowbar.

However, Judge Read dissents, and takes the majority for task for setting out a "bright line" rule--according to Judge Read, "the majority is just wrong to conclude that, as a matter of Fourth Amendment principles, a search resulting in 'damage' is per se outside the scope of a general consent." (Id.) Judge Read would shift the focus, "[s]o, 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', it was objectively reasonable in this case for [the officer] to believe that he had permission to search any area of defendant's car in which narcotics might be secreted." (Id.)

The dissent's logic can be taken to some absurd extremes--what if the officer thought the cocaine might be in the tires? Could he slash the tires based on a defendant's general consent to search? Can officers cut through upholstery if they believe the drugs might be secreted in the car's seat cushions? Drugs can be hidden anywhere in a car--under the dissent's logic, it would apparently be acceptable for the police, acting under a general consent to search, to disassemble the entire car and leave it up on blocks on the side of the road when the search was done. The dissent doesn't answer such hypotheticals, but it does raise the specter of 9/11, arguing that the majority's standard will "hamstring police officers who reasonably suspect that a vehicle contains a hidden compartment--an alteration with few, if any, innocent purposes--which might conceal far more lethal cargo than narcotics." (Id., citing the 9/11 Commission Report.)

For its part, the majority counters that "[W]e cannot agree with the dissent that Fourth Amendment jurisprudence must strive to avoid rules." (Id.)