In this consolidated criminal appeal, defendant appeals a judgment of conviction for
We review whether a search exceeded the scope of an individual’s voluntary consent for errors of law. State v. Arroyo-Sotelo,
At approximately 1:00 p.m., Washington County Deputy Povolny pulled defendant over because the registration sticker on his license plate was expired. As part of the traffic stop, Povolny had dispatch run defendant’s driver’s license and learned that defendant was on probation for drug offenses. Povolny decided not to cite defendant for the traffic violation, but told him to check in with his probation officer concerning the traffic stop. Povolny did not inform defendant that he knew why defendant was on probation.
After telling defendant and his passenger that they were free to leave, Povolny casually asked defendant if he could “search” his car. Povolny did not specify what he wanted to search for. Defendant said that would be “fine,” and he and his passenger got out of the car. A few minutes later, the passenger left.
Povolny reiterated “a couple more times” that defendant was “free to go,” and then began to search defendant’s car, starting at the driver’s door. At that time, defendant stood a close distance behind his vehicle near the curb. During the search, Povolny found a closed backpack on the backseat. Before opening the backpack, Povolny showed it to defendant and asked if it, and its contents, belonged to defendant. Defendant said that the backpack and its contents were his; he also mentioned that Povolny would find a marijuana pipe in the back seat. Povolny thanked defendant for his honesty and told him that he would not issue him a citation for the marijuana pipe. With defendant in “clear view,” Povolny searched the backpack and found a small drawstring bag inside that contained drugs and drug paraphernalia. Povolny asked defendant what was in the bag and defendant replied, “speed.” Povolny clarified with defendant that “speed” was methamphetamine. At no time did defendant revoke or narrow the scope of his consent to search his car.
Defendant filed a pretrial motion to suppress the evidence that Povolny had discovered inside his backpack, arguing that the deputy’s search of the backpack was unlawful because it exceeded the scope of defendant’s consent to search the car. The trial court denied that motion. The court found that defendant gave Povolny “broad consent” to search his car without any “qualifications.” The court further found that defendant was located “approximately a foot away” from Povolny during the search and that “if he so chose, he could have at any point retracted his consent to search. And he didn’t.” Ultimately, the court concluded that “[t]he fact that the officer did not specifically say that this was a search for weapons, drugs, et cetera, does not negate the consent in this case.”
Defendant then waived his right to a jury trial and proceeded to a stipulated facts trial. The trial court convicted defendant of unlawful possession of methamphetamine and unlawful possession of heroin (Washington
On appeal, defendant contends that the trial court erred in concluding that the search did not exceed the scope of his consent. Specifically, defendant argues that the facts in this case are analogous to those in State v. Jacobsen,
Our analysis of the parties’ arguments on appeal begins with a review of familiar principles. Article I, section 9, protects individuals against unreasonable searches and seizures. “A warrantless search violates Article I, section 9 * * * unless justified by an exception to the warrant requirement; consent is one such exception.” State v. Zamora,
A review of our “scope of consent” cases reveals two factors, pertinent to this case, that often play a significant role in our assessment of the “totality of the circumstances” surrounding the grant of consent. First, we have looked to the specific words used by the officer who requested consent, as well as the overall character of the interchange between the officer and the defendant. See, e.g., Arroyo-Sotelo,
For example, in Jacobsen, we emphasized the casual nature of a conversation that a police officer had with the defendant, and the officer’s use of the word “look” to describe what he wanted to do; that is, the officer asked the defendant if he could “look” inside the cab of the defendant’s truck.
By contrast, in Harvey, we held that an officer’s search of a backpack that was found in the defendant’s car did not exceed the scope of his consent to search the car.
The second factor that often is important to the “totality of circumstances” analysis is whether a reasonable person in the defendant’s position would have understood that the officer seeking consent intended to search for particular items. “Generally, when a police officer specifies the subject of a search, ‘the scope of [the] consent * * * should be interpreted to include those areas where the items that are the subject of the search might be found.’” State v. Baker/Jay,
We applied that principle in Harvey. In that case, the defendant was seated in a car parked in the driveway of a house. Id. The car smelled strongly of marijuana, and the defendant knew — before he consented to a search — that a police officer had just located drug paraphernalia inside of the house. Id. Under those circumstances, we held, a reasonable person in the defendant’s position “would have understood that the object of [the officer’s] request was to search for drugs and the scope of that request included any compartments or containers in the car that might hold them.” Id. at 107-08. Conversely, in Jacobsen, our holding that the officer’s search of a duffle bag exceeded the scope of consent was based partly on the fact that the officer had not “indicate [d] that he was going to search for specific items that might be found in particular containers” like the bag.
Both of the factors distinguishing Harvey from Jacobsen — the wording of the police officer’s request and whether the defendant would have understood what the officer was looking for — are important here. First, although Povolny’s conversation with defendant was casual in tone, he asked specifically for consent to “search” his car; he did not merely ask to “look” inside it. A reasonable person in defendant’s position would have understood a “search” to involve more than simply looking into the open areas of the car.
Second, the following circumstances lead us to conclude that a reasonable person in defendant’s position would have understood that Povolny intended to search for evidence of drug crimes. When defendant gave Povolny consent to search his car, he was aware that Povolny knew that he was on probation. And defendant himself certainly would have known that he was on probation for drug crimes. Based on the conversation between Povolny and defendant, the trial court could reasonably infer that defendant would have perceived that Povolny not only knew that defendant was on probation, but also knew why defendant was on probation — for drug crimes. Additionally, at the time he gave consent, defendant was aware that Povolny would find the marijuana pipe on the back seat when he started to search the car. Based on those circumstances, a reasonable person in defendant’s position would have understood that at least one object of Povolny’s request was to search for drugs and, therefore, that the scope of that request included closed containers, located within the car, in which drugs might be found. Under Harvey, that consent was broad enough to justify Povolny’s search of the backpack that he found in the car.
In sum, the totality of the circumstances demonstrate that Povolny’s search of defendant’s backpack and its contents did not exceed
We turn, briefly, to defendant’s argument that the search violated the Fourth Amendment to the United States Constitution, which the state contends is not preserved for appeal. We need not decide the preservation question because, even if the Fourth Amendment argument were preserved for our review, we would reject it on the merits. Although defendant references the Fourth Amendment in his appellate brief, he does not contend that the analysis under that federal constitutional provision would differ from the analysis under Article I, section 9. Because we have rejected defendant’s argument under Article I, section 9, it follows that we would reject the Fourth Amendment argument as he has presented it.
Affirmed.
Notes
This case differs from Jacobsen, on which defendant relies, in another important way. Here, after Povolny started searching the car — but before he opened the backpack — Povolny held up the backpack for defendant to see and asked if it belonged to him. At that time, defendant could have revoked his consent, but he chose not to. Rather, defendant verified that the backpack belonged to him, and then watched Povolny search the backpack without stopping him or making any objection. That event distinguishes this case from Jacobsen, in which the defendant did not see the officer opening the duffle bag and, therefore, “did not have an opportunity to object to him doing so.”