ICA: Search of an Area that Can Possibly Contain Contraband Still Exceeds Scope
State v. Thornton (ICA December 1, 2009)
Background. HPD stopped a car in Waikiki for an expired motor vehicle tax. Thornton was driving and Gipson was in the passenger's seat. Thornton presented his ID, vehicle registration, and insurance card. The police suspected that the insurance card was fraudulent and called the insurance company. In the meantime, another officer, Officer Pistor, saw what he believed to be a bullet-proof vest underneath Thornton's t-shirt. Thornton agreed to allow the police to search the car and signed a written consent form. The form gave Officer Pistor consent to have the "AUTO & CONTENTS, BAGS" searched for "FIREARMS, AMMUNITION." Thornton and Gipson got out of the car and Officer Pistor started to search the car. Officer Pistor found crystal methamphetamine and a scale. Then he found a black wallet lying flat on the driver's seat. Officer Pistor opened the wallet and four identification cards belonging to other people. Thornton and Gipson were arrested and in a search incident to the arrest, police found some methamphetamine, a pipe, and a plastic straw.
Thornton was charged with promoting a dangerous drug in the third degree, unlawful use of drug paraphernalia, and unauthorized possession of confidential personal information (HRS § 708-839.55). Thornton filed a motion to suppress all the evidence. The motion was denied. The jury acquitted Thornton of the drug offenses, but found him guilty of the unauthorized possession of confidential information offense. Thornton appealed.
The Scope of a Consent to Search Hinges on Reasonableness. Warrantless searches are invalid "unless they fall within narrowly drawn exceptions." State v. Mahone, 67 Haw. 644, 646, 701 P.2d 171, 173 (1985). A search conducted "pursuant to voluntary and uncoerced consent by the person being searched" is such an exception. Id. Under the Fourth Amendment, "[t]he standard for measuring the scope of a suspect's consent . . . 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 U.S. 248, 251 (1991). Moreover, "[w]hen an individual gives a general statement of consent without express limitations, the scope of a permissible search is not limitless. Rather it is constrained by the bounds of reasonableness: what a police officer could reasonably interpret the consent to encompass." United States v. Strickland, 902 F.2d 937, 941 (11th Cir. 1990).
The ICA stated that "[a] search for firearms and ammunition pursuant to consent exceeds the scope of consent when either the characteristics of the area to be searched, or the investigating officer's observations do not reasonably suggest the presence of firearms or ammunition." See State v. Younger, 702 A.2d 477, 479-80 (N.J. Sup. Ct. App. Div. 1997); Foster v. State, 646 S.E.2d 302, 306 (Ga. Ct. App. 2007); State v. Huether, 453 N.@.3d 778, 782 (N.D. 1990).
Caches that Could Contain Contraband Doesn't cut it. In this case, the circuit court denied the motion to suppress because the black wallet could have contained a round of ammunition. The ICA agreed that the wallet was capable of containing ammunition, but that was the improper standard. Officer Pistor testified at the hearing on the motion that he felt nothing suggesting there was ammunition inside the wallet and that he was not nervous in handling the potentially loaded wallet. It was clear, according to the ICA, that Officer Pistor's reasonable observations did not suggest the presence of the ammunition. Thus, the search of the wallet exceeded the scope of Thornton's consent.
Two Elements to Determining Scope of Consensual Search. The ICA made it clear that the limits of a consensual search depend on two things: the characteristics of the area being searched and the officer's reasonable beliefs. The police need both in order to be within the scope. The area must reasonably suggest the presence of the item AND the officer's observations must also reasonably suggest the presence. Here, the police had the first one--a wallet can reasonably suggest the presence of ammunition. But the officer's testimony made it clear to the ICA that his observations did not suggest there was anything there. It would make sense that both elements are needed. After all, "[s]peculation or curiosity cannot provide the sole basis to legitimize warrantless searches or seizures." State v. Reed, 70 Haw. 107, 114, 762 P.2d 803, 807 (1988).