Generally, the police need probable cause to search the interior of a vehicle. Because of the inherent mobility of motor vehicles, and because of the lowered expectation of privacy that drivers have relative to their homes, a search warrant is usually not necessary. One way the police can get around the requirement of probable cause is by obtaining consent to search from the operator of the vehicle. “Is there anything in the vehicle that I need to know about? Do you mind if I take look?” is a common interaction.

So, what if you answer, “yes”?

As long as your consent to search is freely and voluntarily given, which means “unfettered by coercion, express or implied, and . . . more than mere acquiescence to a claim of lawful authority” Com. v. Walker, 370 Mass. 548 (1976), then it is a valid waiver of your rights under the 4th Amendment to the U.S. Constitution and Article 14 of the Massachusetts Declaration of Rights to be free from “unreasonable” searches and seizures.

But what is the scope of the search to which you have consented? A recent Supreme Judicial Court decision is on point. In Com. v. Ortiz, decided in February of 2018, the SJC held that when the police ask a driver if there is “anything in the vehicle, including drugs and guns,” and the driver responds, “no, you can check,” then the scope of the consent given is limited to the vehicle’s passenger compartment and truck, and does not include looking under the hood. The reasoning is that the scope of consent to search is defined by the understanding of a typical reasonable person, i.e., when consenting to the search of one’s vehicle, what would the ordinary person – as opposed to the ordinary police officer – think that the consent meant?

In Ortiz, the police searched under the hood, and indeed inside the air filter. The contraband that they discovered was suppressed as evidence as the fruit of an unreasonable, and therefore unconstitutional, search.

The Court also considered the driver’s silence as the search moved from the passenger compartment and truck to under the vehicle’s hood. The Court found that mere silence under those conditions, where the driver was in handcuffs, was not unequivocal consent to the search under the hood, but instead was mere acquiescence to lawful authority.

Attorney Kevin D. Quinlan
Uxbridge, Massachusetts
(508) 723-6384