CONSENT TO SEARCH LIMITED TO INTERIOR AREA OF VEHICLE

In Commonwealth v. Ortiz(February 12, 2018), the SJC affirmed the suppression of firearms seized  by the police from the defendant’s vehicle.  It ruled that the defendant’s “consent to allow the police to search for narcotics or firearms ‘in the vehicle’” did not authorize the “officer to search under the hood of the vehicle and, as part of that search, to remove the vehicle’s air filter.”

These are the basic facts:  Officers Hamel and Boyle stopped the vehicle being driven by the defendant after they heard “excessively loud music” emanating from it. As the officers approached the vehicle, Hamel recognized the defendant and one of his passengers as having previously been involved in criminal activity. In response to Hamel’s request for the defendant’s license and registration, “the defendant presented … a Massachusetts identification card that was not a driver’s license…. Hamel asked the defendant … if there was anything in the vehicle that the police should know about, including narcotics or firearms.  The defendant responded, without hesitation, …, ‘No, you can check.’”

“The officers searched the interior of the vehicle, but found no contraband…. Then, they raised the hood, and a few minutes later, after removing the air filter, Boyle found a black bag that contained two firearms…. At no point did the defendant voice any objection to the search.” “The defendant … was arrested and transported to a police
station” where he “admitted … that the firearms found in the vehicle belonged to him and that he gave consent to the officers to look in his vehicle.” After the return of indictments against the defendant, he filed a motion “to suppress the firearms and the statements he made at the police station.” The judge allowed the motion, finding “that the defendant had given his free and voluntary consent to the search but that, because Hamel had asked the defendant whether he had any narcotics or firearms ‘in the vehicle,’ the scope of the consent was limited to a search for narcotics or firearms in the interior of the vehicle and did not include a search ‘under the hood beneath the air filter.’”

The Commonwealth appealed.  In its decision, the SJC stated, “Under the Fourth Amendment and art. 14 of the Massachusetts  Declaration of Rights, unless it is reasonably clear that the consent to search extends beyond the interior of the vehicle, the police must obtain explicit consent before a vehicular search may extend beneath the hood.”  “ The focus is solely on what a typical reasonable person would understand the scope of the consent to be, based on the words spoken and the context in which they are spoken, not on what a police officer may understand as the places in a vehicle where narcotics or firearms may be hidden.”  Here, the Court noted, “a typical
reasonable person would understand the scope of the defendant’s consent to be limited to a search of the interior of the vehicle, including the trunk.” “The most generous understanding of the defendant’s consent in this case is that it was ambiguous whether it included the engine area under the hood and whether it authorized the police to remove the air filter. But the police are not allowed to take advantage of such ambiguity when they have the ability to resolve it with
clarifying questions.”

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