Concept
Scope of Consent
Consent to search
Scope of Consent
The preceding sections asked whether consent was voluntary and who had the authority to give it. A third question remains even when both answers favor the government: how much did the consent permit? Consent is the only justification for a warrantless search of this kind, so the search is reasonable only to the extent that the permission actually reaches. Scope therefore operates as a separate limit, applied after voluntariness and authority have been settled, and it can invalidate part of a search that began with a perfectly valid invitation.
The measure of scope is objective reasonableness: the question is what a typical reasonable person would have understood the consent to cover, judged from the exchange between the officer and the person who gave it.1 The standard takes this form because of the problems any subjective test would create. If scope turned on what the officer privately intended, officers could stretch a narrow permission to fit whatever they hoped to find. If it turned on what the consenting person privately meant, any search could be attacked after the fact by claiming an unspoken reservation that the officer had no way to detect. Tying scope to the words exchanged and the object of the search gives police a workable guide and leaves the person free to control the search by speaking up. When a driver consents without limitation to a search of the car for drugs, for example, officers may reasonably understand the permission to extend to closed containers inside the car where drugs could be concealed.2
The subsections below develop this idea in four steps. The first sets out the objective-reasonableness standard itself and what it measures. The second applies the standard to containers found inside the place consented to. The third turns to the consenting person's own power to set limits on a search and to take back the permission while the search is underway. The last addresses consent that officers obtain by deception, where the question is whether permission given for one purpose can support a search for another. The first of these, the standard itself, comes next.
Objective Reasonableness Standard
The scope of a consent has one governing measure, and it comes from Florida v. Jimeno. A court asks what the typical reasonable person would have understood by the exchange between the officer and the suspect.3 The test looks at what was said and done in that exchange, and the private thoughts of the officer and the suspect do not enter into it. Two inputs do most of the work: the words of the permission, including any limit the person stated, and the object the officer announced he was looking for. The second input rests on the principle that the scope of a search is generally defined by its expressed object.4
The facts of Jimeno show how the two inputs combine. Officer Trujillo overheard what appeared to be a drug transaction being arranged on a public telephone, followed the caller's car, and stopped it after seeing the driver turn right on red without stopping.5 He told Jimeno he had been stopped for a traffic infraction, added that he had reason to believe Jimeno was carrying narcotics in the car, and asked permission to search it. He also told Jimeno that he did not have to consent. Jimeno said he had nothing to hide and agreed, and the officer then found a folded brown paper bag on the floorboard, opened it, and found a kilogram of cocaine. The statement that Jimeno could refuse bears on whether the consent was voluntary, a question covered earlier, and it was not what the Court decided. The Florida courts had suppressed the cocaine under a per se rule that consent to a general narcotics search never reaches sealed containers, and the Supreme Court took the case on that scope question alone and reversed.6
The Court reasoned from the announced object. Trujillo had told Jimeno that he believed narcotics were in the car and that he would be looking for narcotics, and Jimeno placed no explicit limit on the permission. A reasonable person hearing that exchange would know that drugs are generally carried in some form of container, and that contraband seldom lies loose across the floor or trunk of a car. A general permission to search for narcotics therefore reasonably includes containers that might hold them, and the paper bag on the floorboard was one.7
The standard is objective because of the position each party occupies in the exchange. A test based on the officer's private intent would let an officer stretch a narrow permission to fit whatever he hoped to find, since no one else could check what he privately meant. A test based on what the consenting person privately meant would invite after-the-fact claims of unspoken reservations that the officer had no way to detect when the permission was given. Anchoring scope to the words and the announced object avoids both problems. It also leaves the person in control of the search, because a person who wants a narrower search can say so as the exchange happens, and the Court confirmed that a suspect may delimit the scope of consent as he chooses.8
The result was not unanimous. Justice Marshall dissented on the ground that people have a heightened expectation of privacy in the contents of a closed container, so that consent to search the inside of a car cannot automatically be read to reach containers within it.9 The majority did not treat every container as included. It observed that agreeing to a search of a trunk very likely does not mean agreeing to the breaking open of a locked briefcase inside it, while a closed paper bag is a different matter.10 The next subsection develops that line between containers.
The first twin changed the answer by adding a spoken limit, and the second changed it by shrinking the announced object. Neither happened in Jimeno, which is why the bag fell inside the consent. The same discipline of keeping a search within its justification appears in an exigency case, Mincey v. Arizona, which is only an analogy here because no consent was involved. There the Court said a warrantless search must be strictly circumscribed by the exigencies that justified starting it, and a four-day search that included opening dresser drawers and ripping up carpets could not be explained by the emergency.11 A consent search is confined in the same way by the permission that justifies it.
Containers Within Consent
The objective-reasonableness standard does its most practical work when officers who have been invited to search a place come upon something closed inside it. A bag on a car floor and a briefcase in a trunk raise the same question: would a reasonable person who heard the officer's request understand the permission to include opening this container? The answer starts with the officer's announced purpose, because the scope of a search is generally defined by its expressed object.14 A general consent to search for narcotics therefore reasonably extends to containers within the place that might hold narcotics, and that is what the folded paper bag decided in Florida v. Jimeno.15
The respondents in that case argued, and the Florida trial court agreed, that officers who want to open closed containers inside a car must ask separate permission for each one. The Supreme Court saw no basis for adding that sort of superstructure to the basic test of objective reasonableness.16 The announced object explains why. Narcotics are generally carried in some form of container, so a person who hears an officer say he is looking for narcotics already knows that closed containers are among the things he is being asked to let the officer open, and a permission that excluded them would authorize a search of almost nothing.17 A separate-request rule would also load an informal roadside exchange with a series of questions, and the community has an interest in encouraging consent because a resulting search may produce evidence that keeps an innocent person from being wrongly charged.18 The person gives up no control in the bargain, since a suspect may limit the search as he chooses, and a driver who wants a particular bag left alone can say so while the exchange is happening.19
The same opinion marks where the container rule stops. It distinguished the earlier Florida decision in State v. Wells, which held that consent to search a car's trunk did not include prying open a locked briefcase found inside.20 The Court said it is very likely unreasonable to think that a suspect who consents to a search of his trunk has agreed to the breaking open of a locked briefcase within it, and that the answer is otherwise for a closed paper bag.21 The two containers differ in the intrusion and in what the exchange tells a reasonable listener. Opening an unlocked bag is the ordinary way to look for something hidden in a place, while forcing a lock overcomes a barrier the owner deliberately put in place and risks damaging the property, steps that a bare consent to search does not suggest. The line is often shortened to this: police may look inside unlocked, but not locked, containers large enough to hold the object they named.22 That shorthand is a useful guide, though the opinion's own wording is hedged, so an answer should say that forcing open a locked container is very likely beyond the consent and should avoid stating it as an absolute.
A frequent error is to read the paper-bag holding as saying that consent to a place is consent to everything inside it. The holding reaches containers that might bear the announced object and that an ordinary request would be understood to cover, and the Court itself treated forced entry into a locked briefcase as very likely outside the consent.23
The pouch was the same in both scenes, so the announced object is the fact that moved the result. That dependence applies the principle that a search is defined by its expressed object, and it explains two further limits on any consent search. Police may not exceed the physical area for which consent was given, and they may not examine items, such as private papers, that the object of the search could not be in, so a consent to search for narcotics gives no license to read someone's correspondence.24 Both limits follow the logic of the container rule, because a place or item that the stated object could not occupy lies outside the exchange a reasonable person would have heard.25
Limiting and Withdrawing Consent
The person who consents keeps control of the search that follows, and the reason lies in what justifies the search. Officers who have neither a warrant nor probable cause search only because someone allowed them to. In Florida v. Jimeno the Court repeated that consensual searches are long approved because it is reasonable for police to search once they have been permitted to do so.28 A permission that supplies the whole justification cannot sensibly outlast the person's willingness or stretch past the person's wishes. Two powers follow from that. The person may limit the search when giving consent, and the person may withdraw consent at any time before the search is complete.29 Consent can therefore be granted, granted in part, or withdrawn.30
Limits are the more familiar of the two powers, because they are set at the moment of consent. Jimeno confirmed that a suspect may delimit as he chooses the scope of the search to which he consents.31 A limit can concern an area, such as the passenger compartment but not the trunk, or a room, or a particular container, and it joins the announced object as one of the inputs that fix what a reasonable person would have understood the permission to cover. Searching beyond a stated limit is searching without consent, so the excess needs some other justification. Honoring limits also protects the interest that consent searches rest on. If officers could treat a partial permission as a full one, people would have reason to refuse every request outright, and the community's interest in encouraging consent would suffer.32
Withdrawal works on the same logic at a later moment. A person who has agreed to a search may end it midway, and from that point officers who want to keep searching need a justification other than consent.33 The existence of consent is judged from the viewpoint of a reasonable officer, so the person's undisclosed intent does not control.34 A withdrawal is best treated the same way, which means the question is whether a reasonable officer would have understood the person's words or conduct as ending the permission. A person who wants the search to stop should therefore say so in terms an officer cannot misread.
The scene shows why withdrawal reaches only forward. Students often assume that revoking consent contaminates the whole search, and that assumption is the trap here: withdrawal is not retroactive.35 The living-room observation was lawful when made, because consent was in force and the officers acted within it. Nothing the occupant said afterward can change the character of what had already happened. Officers who stop when told to stop have also done what the withdrawal required, so the earlier findings are not tainted by the way the encounter ended.
A related problem arises when officers return. Courts disagree about whether a voluntary consent may be used to justify a second search of the same place after a fruitless first search, so an answer on this point should be framed as an unsettled issue and should not announce a single rule.36 Three facts weigh against treating the first consent as continuing: a significant passage of time, a second search that involves re-entering the defendant's home, and a change in the defendant's status from suspect to accused.37 The reasoning is that a person who agrees to one search has agreed to the search he understood he was allowing. Reading that permission as an open-ended license would let police stretch a single yes far beyond anything the person had in mind, and each of the three facts makes it less plausible that the earlier yes still reflects his wishes.
The two scenes differ in the facts the courts treat as weighing against continuation, so the exam answer should name those facts and acknowledge the disagreement instead of announcing a certain outcome. In every version of the problem, the starting question remains what the person actually permitted and whether that permission was still in force when the officers searched.
Consent Obtained by Deception
A person who allows a search sets its boundaries through the exchange with the officer, and that exchange is read as a reasonable person would have understood it.40 Deception strains that reading, because the officer who describes the purpose controls the words that define the permission. The problem fits the scope question taught above rather than a separate theory of voluntariness: did the officer go beyond what the person reasonably expected when he said yes?
Consent given for one purpose does not authorize a different use that exceeds the reasonably anticipated scope of the intrusion the person actually allowed.41 Two illustrations show the pattern. A suspect hands police a gun on the representation that the officer will help sell it, and the officer instead has a ballistics test run on the weapon. A suspect gives a blood sample on the representation that it will be tested for alcohol content, and police instead match it to blood found at the scene of a rape.42 In each, the permission was tied to a described purpose, a sale in one case and an alcohol test in the other, and the use the police made of the item was a different search that nothing in the exchange would have led the person to expect. The reason follows from how consent works. A yes is only as wide as the words that produced it, and if the officer could describe a harmless purpose, collect the item, and then do whatever he liked with it, a cheap misdescription would buy an unlimited search. Reading the consent by the purpose actually stated holds the officer to the bargain he proposed.
The same logic reaches a search carried out after consent to a visit. In Gouled v. United States an old acquaintance acting for the police obtained the defendant's consent to enter his office, and then conducted an extensive search when the defendant left the room.43 The invitation let the acquaintance in as a visitor, so the rummaging exceeded the scope of the intrusion the defendant had reasonably anticipated.
The misplaced-trust cases fall on the other side of the line. In Lewis v. United States an undercover narcotics agent posed as a drug purchaser to gain entry to a home, completed a purchase, and then arrested the seller, and the consent to enter was upheld because an undercover agent may enter on the same basis as any other prospective buyer.44 Hoffa v. United States belongs to the same group, since both decisions uphold the admissibility of voluntary disclosures of criminal conduct to an undercover officer or police agent.45 The defendant in each chose to reveal the conduct, and a person who does so takes the risk that the listener will report it. What separates these decisions from Gouled is the relation between the invitation and the officer's conduct. The seller in Lewis invited a buyer to do business and the agent did only that, while the host in Gouled invited a visitor and received a search.
Misrepresentation by itself therefore does not decide the question. The earlier false-warrant cases involve a different kind of lie: in Bumper v. North Carolina an officer told an elderly widow that he had a warrant, and her acquiescence was held not to be consent because a claim of a warrant announces that the occupant has no right to resist.46 A lie about legal authority displaces the occupant's choice, while a lie about an undercover agent's identity, told to someone who has chosen to do business with a buyer, leaves the choice intact. Students often reason that any police lie voids consent, and that shortcut fails because the nature of the misrepresentation determines which analysis applies.47