Florida v. Jimeno/Dissent Marshall

by Thurgood Marshall

Justice MARSHALL, with whom Justice STEVENS joins, dissenting.

The question in this case is whether an individual's general consent to a search of the interior of his car for narcotics should reasonably be understood as consent to a search of closed containers inside the car. Nothing in today's opinion dispels my belief that the two are not one and the same from the consenting individual's standpoint. Consequently, an individual's consent to a search of the interior of his car should not be understood to authorize a search of closed containers inside the car. I dissent.

In my view, analysis of this question must start by identifying the differing expectations of privacy that attach to cars and closed containers. It is well established that an individual has but a limited expectation of privacy in the interior of his car. A car ordinarily is not used as a residence or repository for one's personal effects, and its passengers and contents are generally exposed to public view. See Cardwell v. Lewis, 417 U.S. 583 , 590, 94 S.Ct. 2464, 2469, 41 L.Ed.2d 325 (1974) (plurality opinion). Moreover, cars "are subjected to pervasive and continuing governmental regulation and controls," South Dakota v. Opperman, 428 U.S. 364 , 368, 96 S.Ct. 3092, 3096, 49 L.Ed.2d 1000 (1976), and may be seized by the police when necessary to protect public safety or to facilitate the flow of traffic, see id., at 368-369, 96 S.Ct., at 3096-3097.

In contrast, it is equally well established that an individual has a heightened expectation of privacy in the contents of a closed container. See, e.g., United States v. Chadwick, 433 U.S. 1 , 13, 97 S.Ct. 2476, 2484, 53 L.Ed.2d 538 (1977). Luggage, handbags, paper bags, and other containers are common repositories for one's papers and effects, and the protection of these items from state intrusion lies at the heart of the Fourth Amendment. U.S. Const., Amdt. 4 ("The right of the people to be secure in their . . . papers, and effects, against unreasonable searches and seizures, shall not be violated"). By placing his possessions inside a container, an individual manifests an intent that his possessions be "preserve[d] as private," United States v. Katz, 389 U.S. 347 , 351, 88 S.Ct. 507, 511, 19 L.Ed.2d 576 (1967), and thus kept "free from public examination," United States v. Chadwick, supra, 433 U.S., at 11, 97 S.Ct., at 2483.

The distinct privacy expectations that a person has in a car as opposed to a closed container do not merge when the individual uses his car to transport the container. In this situation, the individual still retains a heightened expectation of privacy in the container. See Robbins v. California, 453 U.S. 420 , 425, 101 S.Ct. 2841, 2845, 69 L.Ed.2d 744 (1981) (plurality opinion); Arkansas v. Sanders, 442 U.S. 753 , 763-764, 99 S.Ct. 2586, 2592-2593, 61 L.Ed.2d 235 (1979). Nor does an individual's heightened expectation of privacy turn on the type of container in which he stores his possessions. Notwithstanding the majority's suggestion to the contrary, see ante, at 251-252, this Court has soundly rejected any distinction between "worthy" containers, like locked briefcases, and "unworthy" containers, like paper bags.

"Even though such a distinction perhaps could evolve in a series of cases in which paper bags, locked trunks, lunch buckets, and orange crates were placed on one side of the line or the other, the central purpose of the Fourth Amendment forecloses such a distinction. For just as the most frail cottage in the kingdom is absolutely entitled to the same guarantees of privacy as the most majestic mansion, so also may a traveler who carries a toothbrush and a few articles of clothing in a paper bag or knotted scarf claim an equal right to conceal his possessions from official inspection as the sophisticated executive with the locked attache case." United States v. Ross, 456 U.S. 798 , 822, 102 S.Ct. 2157, 2171, 72 L.Ed.2d 572 (1982) (footnotes omitted).

Because an individual's expectation of privacy in a container is distinct from, and far greater than, his expectation of privacy in the interior of his car, it follows that an individual's consent to a search of the interior of his car cannot necessarily be understood as extending to containers in the car. At the very least, general consent to search the car is ambiguous with respect to containers found inside the car. In my view, the independent and divisible nature of the privacy interests in cars and containers mandates that a police officer who wishes to search a suspicious container found during a consensual automobile search obtain additional consent to search the container. If the driver intended to authorize search of the container, he will say so; if not, then he will say no.^[1] The only objection that the police could have to such a rule is that it would prevent them from exploiting the ignorance of a citizen who simply did not anticipate that his consent to search the car would be understood to authorize the police to rummage through his packages.

According to the majority, it nonetheless is reasonable for a police officer to construe generalized consent to search an automobile for narcotics as extending to closed containers, because "[a] reasonable person may be expected to know that narcotics are generally carried in some form of a container." Ante, at 251. This is an interesting contention. By the same logic a person who consents to a search of the car from the driver's seat could also be deemed to consent to a search of his person or indeed of his body cavities, since a reasonable person may be expected to know that drug couriers frequently store their contraband on their persons or in their body cavities. I suppose (and hope) that even the majority would reject this conclusion, for a person who consents to the search of his car for drugs certainly does not consent to a search of things other than his car for drugs. But this example illustrates that if there is a reason for not treating a closed container as something "other than" the car in which it sits, the reason cannot be based on intuitions about where people carry drugs. The majority, however, never identifies a reason for conflating the distinct privacy expectations that a person has in a car and in closed containers.

The majority also argues that the police should not be required to secure specific consent to search a closed container, because " '[t]he community has a real interest in encouraging consent.' " Ante, at 252, quoting Schneckloth v. Bustamonte, 412 U.S. 218 , 243, 93 S.Ct. 2041, 2056, 36 L.Ed.2d 854 (1973). I find this rationalization equally unsatisfactory. If anything, a rule that permits the police to construe a consent to search more broadly than it may have been intended would discourage individuals from consenting to searches of their cars. Apparently, the majority's real concern is that if the police were required to ask for additional consent to search a closed container found during the consensual search of an automobile, an individual who did not mean to authorize such additional searching would have an opportunity to say no. In essence, then, the majority is claiming that "the community has a real interest" not in encouraging citizens to consent to investigatory efforts of their law enforcement agents, but rather in encouraging individuals to be duped by them. This is not the community that the Fourth Amendment contemplates.

Almost 20 years ago, this Court held that an individual could validly "consent" to a search —or, in other words, waive his right to be free from an otherwise unlawful search —without being told that he had the right to withhold his consent. See Schneckloth v. Bustamonte, supra. In Schneckloth, as in this case, the Court cited the practical interests in efficacious law enforcement as the basis for not requiring the police to take meaningful steps to establish the basis of an individual's consent. I dissented in Schneckloth, and what I wrote in that case applies with equal force here.

"I must conclude, with some reluctance, that when the Court speaks of practicality, what it really is talking of is the continued ability of the police to capitalize on the ignorance of citizens so as to accomplish by subterfuge what they could not achieve by relying only on the knowing relinquishment of constitutional rights. Of course it would be "practical" for the police to ignore the commands of the Fourth Amendment, if by practicality we mean that more criminals will be apprehended, even though the constitutional rights of innocent people go by the board. But such a practical advantage is achieved only at the cost of permitting the police to disregard the limitations that the Constitution places on their behavior, a cost that a constitutional democracy cannot long absorb." 412 U.S., at 288, 93 S.Ct., at 2079.

I dissent.

Notes

1. Alternatively, the police could obtain such consent in advance by asking the individual for permission to search both the car and any closed containers found inside.