Back in the heyday of the crack epidemic, automotive artists created secret compartments in cars in which uptown drug dealers hid their stash. They were called “clavos,” and could only be opened by some bizarre combination of actions. When the cops figured out that drugs were being secreted in these hidden car voids, it presented a problem.

Not just the problem of finding the clavos, since they were never going to discern the actions needed to pop them open, but doing the search itself, since they were done on the street, on the fly, and there was neither basis nor interest in getting a warrant. But there was the “consent search” exception, whether real or manufactured. They would ask, “mind if I take a look around?” Then they would dismantle a car on the street, ripping off fenders, shrouds and carpeting. Often, body parts were dented when they were tossed to the side.

For years, challenges to these “consent searches” were losers. Courts held that if a person consented, then that was that. The argument was that the consent was to “look around,” not to take apart and destroy. An ordinary person’s understanding of the words “look around” was just that, to look, not touch. Judges shrugged. “Consent,” they muttered, right before “denied.”

Bear in mind, not every search yielded contraband, but every car they tore about was left lying in pieces in the road.* Shockingly, the cops didn’t put the car back together when they came up empty. The person consenting was left holding a bumper as the cruiser drove away. And this was just the collateral damage of the Drug War. Couldn’t be helped.

A petition for cert has been filed in the case of Alexis Gonzalez-Badillo, who was waiting to board a bus to Houston when he was asked by, and gave, consent to a cop to search his bag.

Gonzalez-Badillo commented on how humid it was outside. The officer agreed, and asked where he was headed. Gonzalez-Badillo said he was traveling from California to Houston, but ended up on the wrong bus. That the officer found this “suspicious,” according to the government’s court filing, “as he had never heard of someone taking the wrong bus and ending up in Laredo in the four years that he had been working at the bus station.” He asked Gonzalez-Badillo for permission to search his bag, and Gonzalez-Badillo consented.

Whether or not it’s suspicious to end up on the wrong bus isn’t really a big deal, but just an explanation for why it wasn’t profiling. Beyond that, he gave consent, and that’s good enough.

Inside the bag were two used work boots wrapped in plastic. The officer later testified that he smelled a chemical “masking agent” used in drug trafficking and that the boots felt “lumpy,” and that he could see plastic through a “quarter-sized slit” in one of the boot’s soles. Without asking Gonzalez-Badillo’s permission, the officer tore the sole of the boot and found a bag of heroin. Gonzalez-Badillo pleaded guilty to conspiracy to possess an illicit substance, but reserved his right to challenge how the officer discovered the heroin.

There is much to smell here, and it’s not a chemical masking agent. But the trick is that there is no way to test what a cop smelled during his search, making the options believe him or not. In the ordinary course of moving drugs, reasonable care is taken to conceal them.

There’s no smell. There’s no slit. There’s no way the cop is going to see anything more than boots in plastic. So they make up a story that can’t be tested and, magically, everything makes complete sense. Or maybe Gonzalez-Badillo was a really lousy mule? That could happen too.

Gonzalez-Badillo v. United States, which is currently before the Supreme Court for potential review, opens a window into the common police practice of consensual searches and could establish a potentially dangerous approach to them.

The Supreme Court has never held that a consent search is limited to the scope of consent, and there have been decades of precedent in the district and circuit courts that no matter how limited consent may be, it’s good enough..

Ahead of his trial, Gonzalez-Badillo challenged the legitimacy of the search under the Fourth Amendment. His general acquiescence to a search of his bag, he argued, did not extend to the destruction of his personal property. A magistrate judge and a district court judge disagreed, prompting him to take a conditional guilty plea. Gonzalez-Badillo then asked the Fifth Circuit Court of Appeals to intervene and toss out the search, which would almost certainly nullify the case against him.

In a 2-1 decision, the Fifth Circuit panel sided with the government based on existing precedents on searching closed containers during a consensual search. “We are not persuaded that Gonzalez-Badillo’s boot should be considered akin to a locked container simply because Officer Nevarez opened up the boot sole to recover drugs,” the majority argued. The panel also dismissed the idea that the boots were rendered any less usable by the damage inflicted to them, noting that they could be glued together again.

Does consent to search a bag extend to ripping the sole off a boot? Does consent to look around a car extend to taking the fender off on the side of the road? Putting aside the ubiquitous point that no one should ever consent to a search anyway, people still do. All the time.

Between the “nothing to hide” argument and the mistaken belief that refusal to consent will make the cops believe you’re guilty, the coercive submission to the shield remains one of the most effective means of getting people to do what they know they shouldn’t.

While Gonzalez-Badillo’s boot may not be the biggest-deal destruction ever, it tees up the issue well. While he may have given consent to search his bag, he did not give consent to destroy his boot. The rationale for a consent search is that permission has been knowingly, voluntarily and intelligently granted. Destruction of property doesn’t merely exceed the consent given, but undermines the nature of consent. Nobody has ever told a cop, “sure, destroy my stuff so you can see I’ve got nothing to hide, and then I can go on my way with my destroyed boot.”

Will the Supremes take on this case? They should, putting an end to this absurd extension of consent searches clearly beyond the scope sought and given, but it will mean that one of the best gimmicks cops have to avoid the warrant clause will be lost.

*Certain cars were favored for this purpose, as they had the right voids in their body for clavos. There were also preferred cars because they were pedestrian in appearance and didn’t draw attention.

The cops knew which models these were, such as the Nissan Maxima. The old days were over. Pimpmobiles were for flash; Maximas were for cash. But this gave rise to a secondary issue: there were tons of them on the road, because they were popular cars, but only a small percentage were used for transporting drugs. That meant a lot of innocent people were stopped and had their cars torn apart.