State v. Lamonda, 2011 VT 101 (mem.).
Oh! To be young, carefree, and easily intimidated by police officers during a traffic stop.
Defendant in today’s case was pulled over by police for driving too slow. Upon exiting the car, the officer observed that Defendant was a little sluggish and a bit slow on the draw. Officer asked Defendant if she had been doing any drugs, and Defendant admitted that she had been smoking marijuana. Officer then asked what he would find if he searched Defendant’s car. Her answer was probably “a roach,” which qualifies as an honest but not particularly self-preserving response.
Now officer has the probable cause that he needed to proceed to the next step. Enter psychology. Officer asks permission to search Defendant’s truck (for marijuana). Defendant replies that she would rather not. Officer pointed out that he has enough probable cause to search the vehicle but that he would have to get a search warrant, and it is such a nice day to be waiting in custody . . . . Long story short: Defendant agrees to the search.
Here is where the big legal issue comes into play. While searching the truck, the officer finds Defendant’s purse and starts rifling through it. Lo and behold, there is a metal canister inside with enough marijuana to get up to one person high!
Defendant is charged with possession. At the trial court she moved to dismiss the charge and to suppress the search of her car as illegal. The gist of Defendant’s argument was based on the established limits of what a police officer may or may not search without a warrant when conducting a car search. Defendant notes that while she gave permission to search her car, she did not give permission to search her purse or any sealed canisters within the bag. Plaintiff argues that there were no “exigent circumstances” that justified the officer’s expansion of the search, and his actions were illegal. Therefore, the evidence against her should be dismissed.
For the majority of the SCOV, the issue is not that simple. First, the U.S. Constitution does not draw the distinction that Defendant seeks between searching a car and searching bags found within the car. In fact, the SCOTUS has ruled that such package searches are within the scope of a car search.
Defendant tries to get around this by arguing that the Vermont Constitution affords greater protection and privacy through Article 11. This is a common and successful line of argument for defendants in this state. The SCOV has ruled that Article 11 is more protective of privacy and individual rights than the US Constitution, and it has extended this right to a number of different warrantless search situations.
The SCOV majority, however, is not inclined to go down that road today. It rules that Defendant gave permission to the officer to search the truck. The purse, which was open, on the seat, and contained several suspicious items in plain view, was a logical part of this search. To exclude it from a normal car search or require an officer to obtain a second permission or warrant to search the purse would frustrate law enforcement purposes and would not offer any greater privacy protection to citizens. The SCOV does not say what would happen if the officer went through sealed packages tucked away into the back of the car, but for today, a plain view, “suspicious looking,” purse that is open on the passenger seat will be deemed part of the car search. Put that in your pipe and smoke it.
The SCOV finds no basis for further analysis. By concluding that the purse was fair game as part of the truck search, the SCOV quickly notes that Defendant consented to the search and moves on to affirming the trial court’s decision, which allow Defendant’s conviction to stand.
Justice Johnson dissents from the majority and is joined by Justice Skoglund. For the dissent, the issue is about setting limits to the extent of a car search. Drugs are often secreted in wheel wells, gas tanks, and rocker panels. Do officers have the power to disassemble a car where there is suspicion but no warrant? The dissent thinks not.
For the dissent, Article 11 raises the bar for individual rights and privacy, and part of that is putting a limit on what a car search means. For the dissent, the key point is that the scope of the car search should be based on an objective perspective of what permission to search a car means and should not be based on what the officer thought he meant when he asked for permission to conduct a “car” search.
Under this analysis, the dissent believes it would have been reasonable to ask Defendant a second time to clarify the scope of the search when he saw the metal canister. For the dissent, the burden would not be that great and the result would yield greater protections with minimum impact on law enforcement.
But as with all dissents, this is a vote shy of being the law. Yet, the majority’s decision is drawn narrowly to avoid many of the issues that the dissent raises. So while the dissent does not carry the day, its reasoning could become a template for some ambitious attorney of the future who with a different set of facts may get an alternative majority ruling on the limits of a car search under Article 11.