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Massachusetts Supreme Judicial Court Says Consent to Search “In” a Car Does not Include Under the Hood

In a 4-3 decision delivered today, the Massachusetts Supreme Judicial Court ruled that when a driver gave his consent for a police officer to search “in the vehicle” for contraband, the consent to search did not extend to the area behind the air filter underneath the hood.  The name of the case is Commonwealth v. Ortiz

Holyoke police officers were on patrol in January of 2015 when they heard excessively loud music coming from a car.  Believing the music was so loud as to violate a local ordinance, the cops stopped the car and encountered the defendant (who was driving) and his two passengers.  The officers recognized the defendant and one of his passengers as having been previously accused of serious crimes.  The defendant identified himself with a Massachusetts identification card but neither he nor his passengers had driver’s licenses.  One of the cops asked the defendant if there was anything illegal “in the vehicle,” including guns or drugs.  The defendant responded, “no, you can check.”  At that point, the three occupants of the car were removed, patfrisked, and handcuffed.  Shortly thereafter, a K-9 unit responded.  The dog circled the car but did not alert to anything.  The officers then searched the passenger compartment and didn’t find any contraband.  Finally, one of the cops popped the hood, removed the air filter, and found a bag containing two guns.  The defendant was standing next to the car watching the search, and he never objected to the officers looking under the hood.  The defendant was arrested and charged with illegally possessing the guns.  He filed a motion to suppress, arguing the cops exceeded the scope of his consent to search.  A superior court judge agreed with the defendant and suppressed the guns.  The Commonwealth appealed and the Supreme Judicial Court affirmed.

Everybody agreed that the cops did not have independent constitutional authority to search the car.  There was not probable cause, or even reasonable suspicion, that contraband was hidden therein.  However, police officers can always ask people to waive their constitutional rights and consent to an otherwise-illegal search.  In this case, if the defendant had simply refused to consent to the search, the cops would have been out of luck.  However, when the defendant said, “you can check,” the officers were in business.  The legal question was whether the defendant had consented to a search of the entire vehicle when he said the cops could look “in” the vehicle.  Four justices said no.  The majority pointed out that a search based on consent is not allowed to exceed the scope of the consent.  For example, a homeowner who consents to the search of his front porch is not also consenting to a search of his attic.  In this case, the Court applied the reasonableness standard – what would a typical, reasonable person have understood the scope of his consent to be?  The Court reasoned that a typical, reasonable person would have understood the phrase “in the vehicle” to be the passenger compartment and the trunk (along with any containers that were large enough to contain drugs or guns).  To the extent that the scope of the defendant’s consent was ambiguous, the cops were obligated to ask followup questions to clarify.  The majority also concluded the defendant’s failure to object to the search under the hood was not an adequate substitute for his consent.  The defendant’s silence was simply acquiescence to a claim of lawful authority.  Accordingly, the search was unlawful and the guns will not be admissible at the defendant’s trial (which will, in all likelihood, force the Commonwealth to dismiss the case).

Three justices dissented.  The dissent argued that a typical, reasonable person would have realized that consenting to a search for “any narcotics or firearms in the vehicle” would have included a search underneath the hood.

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