Consider the following scenario:
After overhearing from a public telephone what appeared to be arrangements for a drug transaction, a police officer followed the defendant's car. When the driver committed a traffic violation, the officer stopped his car. The officer told the driver that he believed that he was carrying narcotics in his car and asked for consent to search the car. The driver said that he had nothing to hide. Indeed, having gotten consent, the officer opened the door on the passenger side and saw a folded brown paper bag on the floor of the car. The officer picked up the bag, opened it, and found cocaine inside.
- Did the consent to search the car authorize opening the brown paper bag? Explain.
- Should the evidence be permitted for use against the defendant?
- Why or why not?
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The answer to both questions is yes. Since automobiles may easily be moved, warrantless searches are considered reasonable in circumstances which would be considered unreasonable in the case of a fixed building. The defendant consented to the search, which would remove any taint of illegality about it. He did not restrict the area; but said, "go ahead, I have nothing to hide." The search was incident to a lawful traffic stop, and the officer apparently overheard the conversation quite inadvertently without eavesdropping or illegal wire tapping. Had the defendant refused, it is quite likely that the search would still have been legal, since it was the search of a vehicle.
Since the search itself was legal, then the evidence was obtained pursuant to a lawful search, and is therefore admissible against the defendant.
The answer is unclear. It may be yes or no, depending upon several factors.
First, the search of a closed container within the passenger compartment of a car is NOT the same as the search of the car itself. The suspect here consented to a search of his car. Arguably that consent does not extend to the search of closed containers in the car. Consent will be an issue, and it is likely to go in the suspect’s favor.
Second, the search could be justified as a search incident to lawful ARREST. Except there’s a problem with that justification. The suspect isn't UNDER ARREST in the fact pattern. Your professor will take a very dim view of your adding facts to his/her fact pattern, to say nothing of the fact that without the drugs, the officer may not have adequate evidence to actually arrest the suspect. (I think we can all agree that the traffic stop itself was pretextual, lawful, but probably does not give the officer the power to arrest the suspect.)
Third, and probably most important, the officer could try to justify the search because he had probable cause to believe that the suspect was transporting narcotics. He would base this probable cause on the conversation that he overheard. Overhearing a conversation while in a place that is open to the public, that a member of the public could have overheard, IS NOT an illicit search in itself. This evidence could be the basis for probable cause and probable cause would give the officer a basis to search the container in the car. So the officer would then have the suspect’s consent to search the car and his own probable cause to search the container within, making both searches lawful. The ultimate question will be: Was the overheard conversation adequate to give the officer probable cause to conduct a search of the suspect’s vehicle AND ANY CONTAINERS THEREIN?
If the probable cause is lacking, the consent likely does not extend to the container and the search will not pass Constitutional muster. Hence, any evidence recovered will be inadmissable due to the exclusionary rule.
Under California v. Avcedo, if the police officer had probable cause to search the automobile and was given consent the evidence is admissible. Also under Katz vs US. It states that publically used telephone booths hold an expectation of privacy. So in this case, if the telephone was not in a type of area where there is an expectation of privacy then the statements made are admissible in the court. However, it does not mention in the question that the person the police officer heard was in possession of drugs. The officer only heard that there was a deal that would be in progress in the future. So if we look at California v. Avcedo, the officers also have the right to search a vehicle is it is in sight (also mentioned in California v. Carney) or that there is probable cause to evidence being in the car. Seeing that there is no information to which car has the drugs, probable cause can't be made.
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