LOCKED CONTAINERS - AN OVERVIEW

LOCKED CONTAINERS - AN

OVERVIEW

John P. Besselman

Senior Legal Instructor

Law enforcement students often ask

the question “can I search a locked

container?” A better question to ask may be

“when can I search a locked container?” The

fact that a container is locked may not

increase the possessor-owner’s expectation

of privacy but does limit the law

enforcement officer’s access to the secured

area. The ability to search a locked container

will depend on the justification the law

enforcement officer has for intruding into

the area. The purpose of this article is to

examine the different legal avenues a law

enforcement officer can use to search locked

containers.

WITH A WARRANT

The Supreme Court has expressed a

strong preference that law enforcement

officers obtain a search warrant before

conducting a search of any kind. Searching a

locked container is no different.

The

confusion that surrounds the decision to

search a locked container begins when the

officer is considering a warrantless search of

that container.

The Supreme Court has authorized

warrantless searches in several

circumstances. Automobile searches,

searching those lawfully arrested, Terry

frisks, inventories and consensual searches

are some areas the Supreme Court has

permitted government intrusion without a

warrant. Under what circumstances may a

law enforcement officer intrude into a

U.S. v. Chadwick, 433 U.S. 1 (1977)

locked container without prior judicial

approval? Let us examine these warrant

exceptions one at a time.

THE FRISK

In Terry v. Ohio, 392 U.S. 1, 88

S.Ct. 1868 (1968), the Supreme Court

justified the frisk. A frisk allows the law

enforcement officer to pat the outer clothing

of persons that the officer has reason to

suspect are armed and dangerous. The

justification for the frisk is to allow to

officer to take “steps to assure himself that

the person with whom he is dealing is not

armed with a weapon that could

unexpectedly and fatally be used against

him.” In a subsequent decision, the Supreme

Court expanded the frisk to include those

areas within the immediate control of the

suspect. Michigan v. Long, 463 U.S. 1032,

103 S.Ct. 3469 (1983).

While a law enforcement officer may

frisk persons and the areas under their

control pursuant to the Terry and Long

decisions, this does not mean the officer can

intrude into a locked container encountered

during a frisk. The purpose of the frisk is to

allow the officer to act if he has a reasonable

“belief that his safety or that of others was in

danger,” Terry, see id, at 27. In neutralizing

the threat of physical harm the officer must

also consider the privacy protections

afforded the suspect. If the officer can

preserve safety without intruding into a

locked container, the law will insist on that

alternative.

The government cannot successfully

argue that a law enforcement officer must

intrude into a locked container to prevent the

immediate retrieval of a weapon. The time

required by the suspect to unlock the

container and retrieve a weapon would allow

the officer adequate time to preserve his

safety through other means. The purpose of

a frisk is to secure weapons that might

become used by the suspect during a face-

to-face encounter. Courts have been

reluctant to extend this intrusion, based on

something less than probable cause, to find

items that the suspect may only get to

through great difficulty. During a Terry stop,

law enforcement officers are entitled to take

measures designed to preserve their safety

that does not require unnecessary intrusions.

For instance, if the suspect is holding a

locked container, the law enforcement

officer would be justified in separating the

suspect from the container. The action

preserves the officer’s safety yet requires no

intrusion. If the suspect is standing near a

locked container, such as the trunk of an

automobile, the officer can reposition the

suspect. Of course, the officer may always

ask for the person’s consent to open the

container. When conducting a Terry frisk,

the officer should look for alternative ways

to protect him or herself against the contents

of a locked container but he or she may not

force open the container.

SEARCH INCIDENT TO ARREST

The Supreme Court has long held

that searching the persons of those that law

enforcement officers have arrested is

reasonable. This search also includes the

areas under their immediate control and is

designed to secure weapons, means of

escape and evidence. Chimel v. California,

395 U.S. 752 (1969). The scope of the

search is limited to those areas in which the

arrestee might gain possession of such

items. Does this allow the officer to search

the arrestee’s locked container, such as a

briefcase? While the Supreme Court has

never directly held that such a search is

reasonable, several circuit courts have

interpreted Supreme Court cases to reach

this conclusion.

In New York v. Belton, 453 U.S. 454

(1981), the Supreme Court set out the

parameters for a lawful search of an

automobile incident to arrest in which the

arrested person was found. The Court held

that the interior of the automobile, including

containers found therein, are within the

immediate control of the arrestee. Its

definition of a container “includes closed or

open glove compartments, consoles, or other

receptacles located anywhere within the

passenger compartment, as well as luggage,

boxes, bags, clothing, and the like.”

Several courts have interpreted this

definition to include locked containers, such

as luggage and glove boxes. In U.S. v.

Tavolacci, 895 F.2d 1423 (D.C. Cir. 1990)

the court applied the Belton rule in

permitting an officer to open a locked bag

that was in the immediate control of the

arrestee. The court in U.S. v. Gonzales, 71

F.3d 819 (11th Cir. 1996), stated that the

Belton rule allowed searches incident to

arrest to include glove boxes, locked or

unlocked. The 8th Circuit Court of Appeals,

in U.S. v. Valiant, 873 F.2d 205 (8th Cir.

1989) stated that “(t)he search occurred

incident to that arrest. Because the locked

briefcase was a closed container within that

vehicle, it lawfully could be searched.”

Using these cases as a basis for

interpretation, the courts appear to be

heading in the direction of allowing any

container found in the immediate control of

the arrestee to be searched. Whether the

arrestee could immediately reach the

container to obtain a weapon, a means of

escape, or destroy evidence, seems

immaterial.

INVENTORY

The Supreme Court has recognized

the need for law enforcement personnel to

inventory property for which they have

taken into their custody.

The three reasons

for permitting inventory searches are for the

protection of the owner’s property while it

remains in government custody, the

protection of the government officials from

disputes over lost or stolen property, and the

protection of government officials from

danger. The purpose of the inventory search

must be to meet one of these concerns and

cannot be a pretext to search for evidence.

If the government officials follow standard

procedures related to the three reasons

permitting inventory searches, these

searches are reasonable within the meaning

of the Fourth Amendment.

In Florida v. Wells, 495 U.S. (1990),

the Supreme Court considered the issue of

whether a law enforcement officer may

force open a locked container to inventory

its contents. The Court examined the

discretion permitted an officer engaged in an

inventory search. It held that discretion to

open “closed” containers is acceptable if

such discretion is based on standards related

to preserving property or avoiding

unnecessary danger. If the government has

designed the standardized policy to

maximizing the discovery of evidence of

criminal activity, the policy is flawed. The

Supreme Court allows an officer sufficient

latitude in determining whether a particular

container should be opened. If the agency

produced a policy that allowed officers the

leeway to inventory “closed” containers,

such an intrusion would be permissible.

It is logical to assume that if the

agency produced a standardized policy

regarding locked containers, the same

principle would allow the officer to

inventory the contents of those containers.

Many courts have considered the issue of

South Dakota v. Opperman, 428 U.S. 364 (1976)

Colorado v. Bertine, 479 U.S. 367 (1987)

whether an officer may inventory the

contents of the locked trunk of a vehicle.

Without fail, if the officer is conducting the

inventory pursuant to a standard agency

policy to secure property or avoiding safety

hazards, the inventory was permissible.

In a

case on point, United States v. Como, 53

F.3d 87 (5th Cir. 1995), the Fifth Circuit

Court of Appeals considered an agency

inventory policy that gave the officer the

authority to inventory the contents of a

locked container. In upholding the policy,

the circuit court found the intent of the

inventory policy was to protect property and

therefore, the authority was a reasonable

application of the inventory search principle.

MOBILE CONVEYANCE (CARROLL

DOCTRINE)

In the monumental case of Carroll

v. United States, 267 U.S. 132 (1925) the

Supreme Court found that a warrantless

search of an automobile was reasonable if it

was based on probable cause. In Carroll,

law enforcement officers ripped up the

upholstery of the defendant’s automobile

after they developed probable cause that he

was transporting bootleg alcohol. The

Supreme Court held that this search was

reasonable, even without a warrant, because

of the inherent mobility associated with

automobiles.

Today, the automobile exception to

the Fourth Amendment’s warrant

requirement is well known. Yet does the

exception allow law enforcement officers to

open locked containers found while engaged

in a lawful mobile conveyance search?

United States v. Velarde, 903 F.2d 1163 (7th Cir.

1990); United States v. Duncan, 763 F.2d 220 (6th

Cir. 1985); United States v. Como, 53 F.3d 87 (5th

Cir. 1995); United States v. Martin, 566 F.2d 1143

(10th Cir. 1977).

Based on the many cases decided since the

Carroll decision, the answer is yes.

The Carroll case itself dealt with the

destruction of the defendant’s property. To

find the evidence sought, the officers had to

rip into the automobile’s upholstery, which

is even more intrusive than a search of a

locked container. Nonetheless, the Supreme

Court found the search to be reasonable

within the meaning of the Fourth

Amendment.

In United States v. Ross, 456 U.S.

798 (1982), the Supreme Court interpreted

its prior holdings

to mean that if the law

enforcement officer had probable cause to

conduct a warrantless search of a vehicle on

the side of the road, the officer may also

conduct an immediate and warrantless

search of the contents of that vehicle. The

officer would not need to secure the

container and obtain a warrant. The Court

also explained that if an officer is

conducting a lawful Carroll search, he or

she may conduct that search as if they had a

search warrant issued by a magistrate.

Obviously, a law enforcement officer could

open a locked container with a search

warrant if the container could hold the item

sought.

The Ross Court said “(t)he scope of a

warrantless search of an automobile thus is

not defined by the nature of the container in

which the contraband is secreted. Rather, it

is defined by the object of the search and the

places in which there is probable cause to

believe that it may be found.” This is also a

clear indication that the Court would affirm

a warrantless automobile search of a locked

container found therein. Otherwise, the

Supreme Court would not have drawn

The Supreme Court’s primary focus was on the re-

emphasis of its holding in Chambers v. Maroney, 399

U.S. 42 (1970).

attention to the fact that the nature of the

container itself was irrelevant to the

reasonableness of the search. In sum, the

Ross majority opinion stated “(i)f probable

cause justifies the search of a lawfully

stopped vehicle, it justifies the search of

every part of the vehicle and its contents that

may conceal the object of the search

(emphasis added).”

In California v. Acevedo, 500 U.S.

565 (1991), the Supreme Court reaffirmed

its opinion in Ross by stating that if an

officer has probable cause to conduct a

warrantless search of an automobile, he or

she may also conduct a warrantless search of

any containers found therein that may

contain the item sought. In reviewing its

decision in Carroll, the Court reasoned that

if the destruction of the interior of the

automobile was reasonable, then looking

inside a closed container was reasonable.

Logically, opening a locked container would

be no more unreasonable than destroying the

interior of an automobile.

CONSENT

The government has the burden of

establishing the voluntariness of consent.

When a law enforcement officer conducts a

search pursuant to a suspect’s consent, the

objective standard of reasonableness

determines the parameters of that consent

what would the consenter have understood

the limits to the search were based on the

exchange between the suspect and the law

enforcement officer.

As this question

relates to a locked container, the law

enforcement officer must establish that the

suspect consented to a search of the locked

container.

In Florida v. Jimeno, 500 U.S. 248

(1991) the Supreme Court held that the

Illinois v. Rodriguez, 497 U.S. 177 (1990)

Fourth Amendment is satisfied when it is

objectively reasonable for the officer to

believe that the scope of the suspect’s

consent permitted a particular container to

be opened. Expressed language typically

defines the scope of the consent search. The

Court noted that it “is very likely

unreasonable to think that a suspect, by

consenting to the search of his trunk, has

agreed to the breaking open of a locked

briefcase within the trunk.” However, if an

officer can reasonably conclude that the

suspect has granted consent to search a

particular container, the search is reasonable

within the meaning of the Fourth

Amendment.

Without a direct exchange

concerning a locked container, establishing

consent to enter it is not easy. For instance,

in United States v. Strickland, 902 F.2d 937

(11th Cir. 1990), the court had to consider

whether a law enforcement officer was

justified in slashing the suspect’s spare tire

found in his trunk after obtaining a general

consent to search the auto’s contents. The

officer stated “I want you to understand that

I would like to search the entire contents of

your automobile . . . if you want to sit down,

that’s fine with me, to get out of the cold but

I want you to understand that I would like to

search the entire contents of your car.” The

suspect responded, “That’s fine.” Based on

this exchange, the officer ordered the spare

tire slashed open and evidence was found

inside. The 11th Circuit did not find this

search to be within the parameters set out in

what the suspect understood the scope of the

search to be. The court held that is it not

reasonable to conclude that a person agreed

to the destruction of their property by

consenting to a search of its contents.

Believing that a person gives

permission to destroy their property when

they grant a general consent to search their

property is unreasonable. Therefore, when

an officer obtains a general consent to

search the suspect’s property, he or she may

not damage or destroy a locked container

discovered through that search. Specific

consent to open that container should be

obtained from the suspect.

CONCLUSION

We have looked at several legal

principles that may or may not allow

government intrusion into locked containers.

The central feature of this question is to

understand why the officer is intruding into

protected areas. The law enforcement officer

should always remember that the courts will

look upon any search conducted without a

warrant with suspicion. Oftentimes, the law

enforcement officer can dismiss these issues

by simply obtaining a valid consent to

conduct the search. When a warrant or

consent is not obtainable there are few

justifications for opening a locked container.

These justifications are limited to containers

encountered during a mobile conveyance

(Carroll) search, an inventory search and

those within an arrestee’s immediate control.

Otherwise, it is probably best to refrain from

opening the locked container.