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Mass. Supremes: Consent to Search in Vehicle Did Not Extend to Engine

by Richard Resch

The Supreme Judicial Court of Massachusetts held that consent to search inside a vehicle does not authorize the police to search under the hood of the vehicle.

On January 23, 2015, two police officers conducted a traffic stop of a vehicle for loud music. There were two passengers in the vehicle. The officers reportedly recognized driver Anthony Ortiz and one of the passengers in connection with various previous drug and weapon offenses.

One officer asked Ortiz if there were any drugs or weapons “in the vehicle.” He responded by saying, “No, you can check.” All three were directed to exit the vehicle, placed in handcuffs, and patted down. None of them had any weapons, but the two passengers were in possession of marijuana.

A drug dog circled the vehicle but did not alert to anything. Officer also searched the front and back seat areas and did not find any contraband. An officer then checked under the hood of the vehicle and removed the air filter. He found a black bag containing two guns. Ortiz was on the side of the road during the search under the hood; at no time did he object to the search. He and the two passengers were arrested and taken to the police station, where he admitted the guns were his.

Police acknowledged that the search was conducted based upon Ortiz’s consent, which he acknowledged. They did not consider it an inventory search, and they conceded that they did not believe that they had grounds to search the vehicle without a warrant (absent Ortiz’s consent).

Ortiz was indicted on multiple weapons charges. He moved to suppress the guns and statements made at the police station, arguing that the search under the hood was unconstitutional and that his statements were fruits of the unconstitutional search. The superior court granted his motion. The court determined that Ortiz consented to the search for drugs and weapons “in the vehicle,” but the scope of the search exceeded his consent, which a reasonable person would believe was limited to the cabin of the vehicle. The ruling was appealed to the Massachusetts Supreme Court.

The issue before the Supreme Court was the scope of Ortiz’s consent. A search based upon consent may not exceed the scope of that consent. The standard for determining scope of consent is that of objective reasonableness, i.e., “what would the typical reasonable person have understood by the exchange between the officer and the suspect.” Florida v. Jimeno, 500 U.S. 248 (1991). The Court emphasized that the standard focuses on the “typical reasonable person, not a typical reasonable police officer.” The Court explained that the distinction is important, especially in this case, because the fact that police officers have experience finding contraband hidden under vehicle air filters “is irrelevant to a reasonable person’s understanding of the scope of the driver’s consent.”

The Court noted that the exchange between the officer and Ortiz indicated that the consent to search was limited to the interior of the vehicle, as understood by a typical reasonable person. The officer asked if there was anything “in” the vehicle police should know about, and Ortiz responded, “No, you can check.” According to the Court, his words limited the scope of the search to what a typical reasonable person would have understood the officer’s request to include—passenger cabin, containers located therein that could contain drugs or weapons, and the trunk.

The Court explained that even the most generous understanding of Ortiz’s scope of consent would result in ambiguity as to whether he was consenting to a search of the engine compartment. But the Court stated that it has held “the voluntariness of consent to a search must be unambiguous.” Commonwealth v. Carr, 458 Mass. 295 (2010). Police are not permitted to take advantage of ambiguity when they have the ability to resolve such uncertainty with clarifying questions. Under its case law, the Massachusetts Supreme Court requires clarity both as to the voluntariness of consent as well as the scope thereof.

Ortiz did not unambiguously consent to the search of the engine compartment, the Court concluded. As such, the police were required to obtain explicit consent before proceeding to search under the hood. Ortiz’s silence as police searched under the hood did not constitute consent. It was nothing more than “mere acquiescence to a claim of lawful authority,” according to the Court.

Accordingly, the search of the air filter exceeded the scope of Ortiz’s consent to search and was thus an unconstitutional search. The Supreme Court affirmed the motion judge’s suppression order with respect to the guns and subsequent statements made at the police station. See: Commonwealth v. Ortiz, 478 Mass. 820 (2018). 

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