LOCKED CONTAINERS - AN locked container without prior judicial

OVERVIEW approval? Let us examine these warrant

exceptions one at a time.
John P. Besselman
THE FRISK
Senior Legal Instructor
In Terry v. Ohio, 392 U.S. 1, 88
S.Ct. 1868 (1968), the Supreme Court
Law enforcement students often ask
justified the frisk. A frisk allows the law
the question can I search a locked
enforcement officer to pat the outer clothing
container? A better question to ask may be
of persons that the officer has reason to
when can I search a locked container? The
suspect are armed and dangerous. The
fact that a container is locked may not
justification for the frisk is to allow to
increase the possessor-owners expectation
officer to take steps to assure himself that
of privacy but does limit the law
the person with whom he is dealing is not
enforcement officers access to the secured
armed with a weapon that could
area. The ability to search a locked container
unexpectedly and fatally be used against
will depend on the justification the law
him. In a subsequent decision, the Supreme
enforcement officer has for intruding into
Court expanded the frisk to include those
the area. The purpose of this article is to
areas within the immediate control of the
examine the different legal avenues a law
suspect. Michigan v. Long, 463 U.S. 1032,
enforcement officer can use to search locked
103 S.Ct. 3469 (1983).
containers.
While a law enforcement officer may
WITH A WARRANT
frisk persons and the areas under their
control pursuant to the Terry and Long
The Supreme Court has expressed a
decisions, this does not mean the officer can
strong preference that law enforcement
intrude into a locked container encountered
officers obtain a search warrant before
during a frisk. The purpose of the frisk is to
conducting a search of any kind. Searching a
allow the officer to act if he has a reasonable
locked container is no different.1 The
belief that his safety or that of others was in
confusion that surrounds the decision to
danger, Terry, see id, at 27. In neutralizing
search a locked container begins when the
the threat of physical harm the officer must
officer is considering a warrantless search of
also consider the privacy protections
that container.
afforded the suspect. If the officer can
preserve safety without intruding into a
The Supreme Court has authorized
locked container, the law will insist on that
warrantless searches in several
alternative.
circumstances. Automobile searches,
The government cannot successfully
searching those lawfully arrested, Terry
argue that a law enforcement officer must
frisks, inventories and consensual searches
intrude into a locked container to prevent the
are some areas the Supreme Court has
immediate retrieval of a weapon. The time
permitted government intrusion without a
required by the suspect to unlock the
warrant. Under what circumstances may a
container and retrieve a weapon would allow
law enforcement officer intrude into a
the officer adequate time to preserve his
safety through other means. The purpose of
1
U.S. v. Chadwick, 433 U.S. 1 (1977)
a frisk is to secure weapons that might In New York v. Belton, 453 U.S. 454
become used by the suspect during a face- (1981), the Supreme Court set out the
to-face encounter. Courts have been parameters for a lawful search of an
reluctant to extend this intrusion, based on automobile incident to arrest in which the
something less than probable cause, to find arrested person was found. The Court held
items that the suspect may only get to that the interior of the automobile, including
through great difficulty. During a Terry stop, containers found therein, are within the
law enforcement officers are entitled to take immediate control of the arrestee. Its
measures designed to preserve their safety definition of a container includes closed or
that does not require unnecessary intrusions. open glove compartments, consoles, or other
For instance, if the suspect is holding a receptacles located anywhere within the
locked container, the law enforcement passenger compartment, as well as luggage,
officer would be justified in separating the boxes, bags, clothing, and the like.
suspect from the container. The action
preserves the officers safety yet requires no Several courts have interpreted this
intrusion. If the suspect is standing near a definition to include locked containers, such
locked container, such as the trunk of an as luggage and glove boxes. In U.S. v.
automobile, the officer can reposition the Tavolacci, 895 F.2d 1423 (D.C. Cir. 1990)
suspect. Of course, the officer may always the court applied the Belton rule in
ask for the persons consent to open the permitting an officer to open a locked bag
container. When conducting a Terry frisk, that was in the immediate control of the
the officer should look for alternative ways arrestee. The court in U.S. v. Gonzales, 71
to protect him or herself against the contents F.3d 819 (11th Cir. 1996), stated that the
of a locked container but he or she may not Belton rule allowed searches incident to
force open the container. arrest to include glove boxes, locked or
unlocked. The 8th Circuit Court of Appeals,
SEARCH INCIDENT TO ARREST in U.S. v. Valiant, 873 F.2d 205 (8th Cir.
1989) stated that (t)he search occurred
The Supreme Court has long held incident to that arrest. Because the locked
that searching the persons of those that law briefcase was a closed container within that
enforcement officers have arrested is vehicle, it lawfully could be searched.
reasonable. This search also includes the
areas under their immediate control and is Using these cases as a basis for
designed to secure weapons, means of interpretation, the courts appear to be
escape and evidence. Chimel v. California, heading in the direction of allowing any
395 U.S. 752 (1969). The scope of the container found in the immediate control of
search is limited to those areas in which the the arrestee to be searched. Whether the
arrestee might gain possession of such arrestee could immediately reach the
items. Does this allow the officer to search container to obtain a weapon, a means of
the arrestees locked container, such as a escape, or destroy evidence, seems
briefcase? While the Supreme Court has immaterial.
never directly held that such a search is
reasonable, several circuit courts have INVENTORY
interpreted Supreme Court cases to reach
this conclusion. The Supreme Court has recognized
the need for law enforcement personnel to
inventory property for which they have whether an officer may inventory the
taken into their custody.2 The three reasons contents of the locked trunk of a vehicle.
for permitting inventory searches are for the Without fail, if the officer is conducting the
protection of the owners property while it inventory pursuant to a standard agency
remains in government custody, the policy to secure property or avoiding safety
protection of the government officials from hazards, the inventory was permissible.4 In a
disputes over lost or stolen property, and the case on point, United States v. Como, 53
protection of government officials from F.3d 87 (5th Cir. 1995), the Fifth Circuit
danger. The purpose of the inventory search Court of Appeals considered an agency
must be to meet one of these concerns and inventory policy that gave the officer the
cannot be a pretext to search for evidence.3 authority to inventory the contents of a
If the government officials follow standard locked container. In upholding the policy,
procedures related to the three reasons the circuit court found the intent of the
permitting inventory searches, these inventory policy was to protect property and
searches are reasonable within the meaning therefore, the authority was a reasonable
of the Fourth Amendment. application of the inventory search principle.

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

the Supreme Court considered the issue of DOCTRINE)
whether a law enforcement officer may
force open a locked container to inventory In the monumental case of Carroll
its contents. The Court examined the v. United States, 267 U.S. 132 (1925) the
discretion permitted an officer engaged in an Supreme Court found that a warrantless
inventory search. It held that discretion to search of an automobile was reasonable if it
open closed containers is acceptable if was based on probable cause. In Carroll,
such discretion is based on standards related law enforcement officers ripped up the
to preserving property or avoiding upholstery of the defendants automobile
unnecessary danger. If the government has after they developed probable cause that he
designed the standardized policy to was transporting bootleg alcohol. The
maximizing the discovery of evidence of Supreme Court held that this search was
criminal activity, the policy is flawed. The reasonable, even without a warrant, because
Supreme Court allows an officer sufficient of the inherent mobility associated with
latitude in determining whether a particular automobiles.
container should be opened. If the agency
produced a policy that allowed officers the Today, the automobile exception to
leeway to inventory closed containers, the Fourth Amendments warrant
such an intrusion would be permissible. requirement is well known. Yet does the
exception allow law enforcement officers to
It is logical to assume that if the open locked containers found while engaged
agency produced a standardized policy in a lawful mobile conveyance search?
regarding locked containers, the same
principle would allow the officer to
inventory the contents of those containers. 4
Many courts have considered the issue of 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
2
South Dakota v. Opperman, 428 U.S. 364 (1976) Cir. 1995); United States v. Martin, 566 F.2d 1143
3
Colorado v. Bertine, 479 U.S. 367 (1987) (10th Cir. 1977).
Based on the many cases decided since the attention to the fact that the nature of the
Carroll decision, the answer is yes. container itself was irrelevant to the
reasonableness of the search. In sum, the
The Carroll case itself dealt with the Ross majority opinion stated (i)f probable
destruction of the defendants property. To cause justifies the search of a lawfully
find the evidence sought, the officers had to stopped vehicle, it justifies the search of
rip into the automobiles upholstery, which every part of the vehicle and its contents that
is even more intrusive than a search of a may conceal the object of the search
locked container. Nonetheless, the Supreme (emphasis added).
Court found the search to be reasonable
within the meaning of the Fourth In California v. Acevedo, 500 U.S.
Amendment. 565 (1991), the Supreme Court reaffirmed
its opinion in Ross by stating that if an
In United States v. Ross, 456 U.S. officer has probable cause to conduct a
798 (1982), the Supreme Court interpreted warrantless search of an automobile, he or
its prior holdings5 to mean that if the law she may also conduct a warrantless search of
enforcement officer had probable cause to any containers found therein that may
conduct a warrantless search of a vehicle on contain the item sought. In reviewing its
the side of the road, the officer may also decision in Carroll, the Court reasoned that
conduct an immediate and warrantless if the destruction of the interior of the
search of the contents of that vehicle. The automobile was reasonable, then looking
officer would not need to secure the inside a closed container was reasonable.
container and obtain a warrant. The Court Logically, opening a locked container would
also explained that if an officer is be no more unreasonable than destroying the
conducting a lawful Carroll search, he or interior of an automobile.
she may conduct that search as if they had a
search warrant issued by a magistrate. CONSENT
Obviously, a law enforcement officer could
open a locked container with a search The government has the burden of
warrant if the container could hold the item establishing the voluntariness of consent.
sought. When a law enforcement officer conducts a
search pursuant to a suspects consent, the
The Ross Court said (t)he scope of a objective standard of reasonableness
warrantless search of an automobile thus is determines the parameters of that consent
not defined by the nature of the container in what would the consenter have understood
which the contraband is secreted. Rather, it the limits to the search were based on the
is defined by the object of the search and the exchange between the suspect and the law
places in which there is probable cause to enforcement officer.6 As this question
believe that it may be found. This is also a relates to a locked container, the law
clear indication that the Court would affirm enforcement officer must establish that the
a warrantless automobile search of a locked suspect consented to a search of the locked
container found therein. Otherwise, the container.
Supreme Court would not have drawn
In Florida v. Jimeno, 500 U.S. 248
5
The Supreme Courts primary focus was on the re- (1991) the Supreme Court held that the
emphasis of its holding in Chambers v. Maroney, 399
6
U.S. 42 (1970). Illinois v. Rodriguez, 497 U.S. 177 (1990)
Fourth Amendment is satisfied when it is property is unreasonable. Therefore, when
objectively reasonable for the officer to an officer obtains a general consent to
believe that the scope of the suspects search the suspects property, he or she may
consent permitted a particular container to not damage or destroy a locked container
be opened. Expressed language typically discovered through that search. Specific
defines the scope of the consent search. The consent to open that container should be
Court noted that it is very likely obtained from the suspect.
unreasonable to think that a suspect, by
consenting to the search of his trunk, has CONCLUSION
agreed to the breaking open of a locked
briefcase within the trunk. However, if an We have looked at several legal
officer can reasonably conclude that the principles that may or may not allow
suspect has granted consent to search a government intrusion into locked containers.
particular container, the search is reasonable The central feature of this question is to
within the meaning of the Fourth understand why the officer is intruding into
Amendment. protected areas. The law enforcement officer
should always remember that the courts will
Without a direct exchange look upon any search conducted without a
concerning a locked container, establishing warrant with suspicion. Oftentimes, the law
consent to enter it is not easy. For instance, enforcement officer can dismiss these issues
in United States v. Strickland, 902 F.2d 937 by simply obtaining a valid consent to
(11th Cir. 1990), the court had to consider conduct the search. When a warrant or
whether a law enforcement officer was consent is not obtainable there are few
justified in slashing the suspects spare tire justifications for opening a locked container.
found in his trunk after obtaining a general These justifications are limited to containers
consent to search the autos contents. The encountered during a mobile conveyance
officer stated I want you to understand that (Carroll) search, an inventory search and
I would like to search the entire contents of those within an arrestees immediate control.
your automobile . . . if you want to sit down, Otherwise, it is probably best to refrain from
thats fine with me, to get out of the cold but opening the locked container.
I want you to understand that I would like to
search the entire contents of your car. The
suspect responded, Thats 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