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Even with permission from vehicle owners, police looking for drugs and other contraband can't literally tear cars apart at traffic stops, the Court of Appeals has ruled in a 6-1 decision.
The ruling came in a case involving Felix Gomez who two officers from the New York Police Department had stopped in 2001 for having excessively tinted windows.
After suspecting that there were drugs in the car and obtaining permission from the driver to search the car, police used a crowbar to pry open a gas-tank compartment where they found 1 ½ pounds of cocaine.
Saying that the officers had exceeded their authority, the state's highest court send the case back to the Appellate Division to determine if there was enough probable cause to tear the car apart with a crowbar.
http://www.nycourts.gov/ctapps/decisions/oct05/133opn05.pdf
Just past midnight on Sept. 27, 2001, Sgt. 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. While his partner spoke with Gomez who was driving the vehicle, 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 narcotics trafficking, the undercarriage of a vehicle can offer telltale signs of secret compartments. Accordingly, he said he checks the undercarriage of virtually every car he stops.
Planeta, upon his inspection, noticed a fresh undercoating around the gas tank. Meanwhile, Gomez 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 "Ana Teodora Fermin" rather than "Ana 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 Gomez gave.
Upon obtaining consent to search, Planeta directed Gomez 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 1 1/2 pounds from the compartment found in the gas tank.
Arrested and issued a summons for illegally tinted windows and an expired inspection sticker, Gomez 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. Gomez 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. The Court denied the motion after a hearing finding that defendant had voluntarily consented to a search and that the search conducted was within the scope of the consent, in that defendant never expressly limited or revoked his permission to search. The court reasoned in the alternative that in the absence of consent, probable cause existed to justify the search.
Gomez 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".
The court did not address the alternative grounds relied on by the suppression court in denying the underlying motion. The Court of Appeals reversed and remitted the matter back to the Appellate Division to address the remaining issues in the appeal.
"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?", Justice Victoria Graffeo wrote. 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. The Court noted, however, 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" 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" 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.
"The scope of a search is generally defined by its expressed object", the court found. As both sides here agree, a general consent to search, on its own, does not give an officer unfettered search authority. In the absence of other circumstances indicating that defendant authorized the actions taken by police, a general consent to search alone cannot justify a search 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 this action without first obtaining defendant's specific consent.
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, the Court held.
10-27-05
© 2005 North
Country Gazette
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