Via John Wesley Hall at the Fourth Amendment Blog, courtesy of Liberty and Justice For Y’all, the 5th Circuit decision in United States v. Garcia  brings up an old shocker, when the consent search winds up with the cops dismantling a car on the side of the road.

The scope of a consensual search may be limited by the expressed object of the search. Jimeno, 500 U.S. at 251. But where, as here, an officer does not express the object of the search, the searched party, who knows the contents of the vehicle, has the responsibility explicitly to limit the scope of the search. Mendoza-Gonzalez, 318 F.3d at 667. Otherwise, an affirmative response to a general request is evidence of general consent to search. Id. Garcia did not qualify his consent to the officers, who therefore had general consent to search the truck.

General consent to search a vehicle does not, however, give an officer carte blanche over the vehicle. Id. at 669. A search must still be reasonable, given the totality of the circumstances. Id. The search here was reasonable. When the officers requested permission to search the truck after asking Garcia whether he was carrying “anything illegal,” it was natural to conclude that they might look for hidden compartments or containers.

The problem, of course, is that the scope of the consent is whatever the cops say it is, and is based on a parsing of the language that far exceeds anything a reasonable person understands it to be.  When a cop asks a motorist if he can take a look in his car, does the motorist understand that to mean that he’s going to pull off the fenders in search of a secret compartment? 

During the 1980s, it became fairly commonplace for drug dealers to build secret compartments into their cars.  The Spanish word for this was clavo, the New York City police quickly became aware of the situation.  There was even an office in the 34th Precinct who took it upon himself to keep files on clavos in various types of cars, and was later called to testify as the Clavo Expert, with his notebook filled with his collected details about secret compartments in various types of cars. 

The problem was that the cop who made the car stop and obtained consent had to figure out where the clavo was and how to get into it.  They were often kept closed by substantial locks, triggered electrically, and secreted deep within the body structure of the car.  Based upon model, cars would have voids in different places, and the clavo was designed to fit the hole in the particular model.  Some cars, like the Nissan Maxima, were favorites, because they were fast and offered some great hiding places.

The solution became clear.  Not only were cops targeting Maximas, but after obtaining consent, physically dismantling the cars by pulling off body parts on the side of the road.  It was bad enough when they happened to stop a mule carrying drugs, but when they destroyed cars of innocent people in their search for the clavo, people were outraged.  Unfortunately, there was little to be done to stop it.  The courts ignored the issue of the search exceeding consent, the outrageous destruction of property in the never ending war on drugs. 

Notably, the second quoted paragraph above is the one that presents the problem.  The court held that general consent doesn’t give the police carte blanche, but that a search must still be reasonable under the totality of the circumstances.  The court then finds the search reasonable for no particular reason at all. 

When the war on drugs was at its most heated stage, it was hardly surprising that courts would empower the police to engage in routine dismantling of cars to search for secret compartments. Hey, that’s how the drugs were transported and that’s what was needed to find them.  Nobody was going to let a detail like excess or reasonableness stand in the way of the war on drugs.  So what if consent was obtained without any clue that it entailed the destruction of the car.  As the 5th Circuit says, it’s only “natural”.

But the war on drugs has wound down quite a bit since then.  The old crack days are largely past, and headlines no longer scream about the plague of drugs on the streets.  Courts can now take a more principled view of the old search at any price precedent when it came to drugs and automobiles, and rein in the harm done to the warrant clause when there was no search they didn’t approve. 

But the 5th Circuit instead stuck to the old drug war program and approve the search, engaging in the legal fiction that anyone giving consent would naturally understand that to mean approval of the cops dismantling the car, or any part of it, they wanted.  Isn’t that what we would all believe to be the case when we knowingly, voluntarily and intelligently consent to a quick look by the cops to see if there’s “anything illegal” in there?

And I’m sure that the defendant’s name, “Garcia”, didn’t have anything to do with it.