Consent to Search Does Not Include Consent to Pry Back of the Interior Panel of a Car, Court Rules

LAW ENFORCEMENT January 1995

The Oregon Court of Appeals ruled that while a motorist approved a broad search of his car for drugs, the law enforcement officer went too far in prying back a panel of the car and unscrewing an armrest (State v. Arroyo-Sotelo, 884 P.2d 901 (Or.App. 1994); 56 CrL 1224, Dec. 7, 1994).

Jose Arroyo-Sotelo was stopped by a police officer for a traffic violation. The officer issued a warning, but saw that the defendant was very nervous. The officer asked if there were any weapons in the car. Arroyo-Sotelo said no, and that the officer "could look if he wanted to." The officer then asked if there were any drugs in the car, and the defendant said no. When the officer asked permission to search the car, the defendant said, "go ahead and look." The passenger in the car was asked the same questions and gave the same responses.

In the course of the search, the officer found several thousand dollars in a purse in the trunk. The officer testified that in his experience narcotics traffickers often hide drugs in the panels of cars. The officer then removed the rear passenger wall panel and found cocaine.

The court said that unless there is evidence that there are items hidden in areas, a broad search of a car based on the owner's general consent does not lawfully include areas that are not usually opened or accessed. Any such search violates the scope of the defendant's consent to the search and his rights under the Fourth Amendment.

"Even a broad grant of authority is not without limits," the court said. "We do not believe that a reasonable person would have understood [the] defendant's general consent to a search of his car for narcotics, money and weapons, to authorize [the officer] to remove screws and pry the panel from the sidewall of the car."

[If H.R. 666, passed by the House of Representatives on Feb. 9, 1995, is enacted, this type of result would probably no longer be possible in Federal Courts. -- EES]