On July 2, 2013, the Fifth Circuit Court of Appeals decided the United States v. Cotton [i] which serves as an excellent review of the law regarding consent to search and the scope of consent. The facts of Cotton are as follows:
In February 2011, Cotton was driving his rental car along Interstate 10 in east Texas when, without changing lanes or slowing his speed as required by Texas law, he passed Lieutenant Tony Viator’s emergency vehicle parked on the side of the road. Having already received a tip from a fellow officer that Cotton might be carrying drugs, Viator conducted a stop and a lengthy detention, running license checks with dispatch and questioning separately both Cotton and his passenger, John Thornton, about their itinerary and their reasons for travel. Viator’s suspicion grew when inconsistencies in Cottons’s and Thornton’s stories emerged, so he sought Cotton’s consent to search the rental car for drugs.
The audio from the camera on Viator’s vehicle recorded the following interaction between Viator and Cotton, which took place 11 minutes into the stop and before the check of Cotton’s license had returned clear:
Viator: Can I search this vehicle?
Cotton: [Unintelligible]1
Viator: Hold on. Come here. Come here. Come here. Is it okay if I search it?
Cotton: Search my luggage. [Unintelligible]
Viator: Okay. Is it okay if I search everything in the car?
Cotton: My luggage, yeah.
Viator began a meticulous search of the entire vehicle while Deputy Clint Landry, who had recently arrived on the scene, guarded Cotton and Thornton as they sat on the grass several yards from the car. Forty minutes into the search, and after first searching the trunk and the entire passenger cabin, Viator proceeded to examine more closely, inter alia, the driver’s-side rear door for evidence of contraband. While squatting outside the car with that door open, he noticed loose screws and tool markings on the door’s panel. He then pried back the panel and discovered a small, plastic-wrapped bundle concealed in the door’s inner cavity. When Viator then signaled for Landry to cuff the men, Cotton fled afoot. The officers caught the less-than-nimble suspect after a brief chase, placed him under arrest, and Mirandized him. After that, Cotton made incriminating statements while trying to work out a deal with the officers. The plastic-wrapped bundle was later tested and discovered to contain crack cocaine. [ii]
Cotton filed a motion to suppress which was denied. He pled guilty with the right to appeal the denial of the motion. He then filed a timely appeal to the Fifth Circuit Court of Appeals. The issue before the court was whether the officer exceeded the scope of Cotton’s consent when he searched the entire car to include interior panels rather than just searching the luggage.
Regarding the scope of consent, the court stated:
When conducting a warrantless search of a vehicle based on consent, officers have no more authority to search than it appears was given by the consent.” Thus, it is “important to take account of any express or implied limitations or qualifications attending that consent which establish the permissible scope of the search in terms of such matters as time, duration, area, or intensity.” The Supreme Court’s standard, under Florida v. Jimeno, is “that of ‘objective’ reasonableness—what would the typical reasonable person have understood by the exchange between the officer and the suspect?” [iii]
The government contended that the officer could look or search anywhere in the car where luggage could be located. However, the officer did not find the drugs while moving objects in order to access luggage. Rather, the officer found the drugs when he noticed loose screws on a door panel. Specifically, the court stated:
The video evidence and Viator’s own testimony, however, reveal that he discovered the loose screws and tool markings on the driver’s-side rear door panel not as he was trying to locate Cotton’s luggage and not as he was examining the contents of such luggage. Rather, after locating and searching the luggage in the backseat area of the car, Viator expanded his search for evidence of contraband to the vehicle itself by proceeding to examine, inter alia, the driver’s-side rear door. Authority to enter and search the car for Cotton’s luggage was not authority to search discrete locations within the car where luggage could not reasonably be expected to be found. Neither was it justification for lingering in and around the vehicle for 40 minutes—much longer than a search for and of Cotton’s luggage should or could conceivably last. [iv]
The court also examined whether the officer could have reasonably interpreted Cotton’s consent to include a search of the entire vehicle in addition to the luggage. The court stated that the scope of consent can be limited by the stated object of the search. Additionally, the scope of consent can be limited by what the officer asks to search. The court stated:
The scope of a consensual search may be limited by the expressed object of the search”;thus, when an officer requests to “look through the trunk” of a car but adds that he does not want to look through each item and just wants “to see how things were ‘packed’ or ‘packaged,'” he exceeds the scope of the consent by unzipping and searching the bags in the trunk. When “an officer does not express the object of the search,” however, “the searched party, who knows the contents of the vehicle, has the responsibility explicitly to limit the scope of the search. [v]
In this case, the court noted that Cotton’s consent was not ambiguous. In fact, the officer twice clarified the consent and each time Cotton referred to his “luggage.”
Additionally, while Cotton did not object when the officer began to exceed the scope of the consent, he was not required to do so because he had already clearly stated the scope of his consent.
Therefore, since the officer exceeded the scope of Cotton’s consent to search, the search violated the Fourth Amendment and the fruit of the search must be suppressed.
_____________________
Note: Court holdings can vary significantly between jurisdictions. As such, it is advisable to seek the advice of a local prosecutor or legal adviser regarding questions on specific cases. This article is not intended to constitute legal advice on a specific case.
_____________________
CITATIONS:
[i] No. 12-40563, 2013 U.S. App. LEXIS 13537 (5th Cir.)
[ii] Id. at 1-3
[iii] Id. at 5 (internal citations omitted)
[iv] Id. at 7
[v] Id. at 9
