Issue (composed by On Point)
When the passenger of a car asks a police officer searching the car if he has “got a warrant for that?” before the officer opens a briefcase found in the hatchback of the car, has the driver’s general consent to search the car been limited?
For more factual background about this an interesting and novel issue in Wisconsin, see our prior post. The court of appeals acknowledged the possibility that a driver’s consent to search his or her car might not extend to all objects in the car if, for instance, the objects are distinctively marked as belonging to a passenger, State v. Matejka, 2001 WI 5, ¶36, 241 Wis. 2d 52, 621 N.W.2d 891 (suggesting a “locked” suitcase or briefcase might limit the driver’s authority to consent). It also accepted Wantland’s argument, based on State v. Suazo, 627 A.2d 1074 (N.J. 1993), that the passenger’s objection to the search of the object could circumscribes the scope of the driver’s consent. The problem, said the court, was that Wantland’s statement was not clear and unequivocal enough to assert ownership and express a limitation on the driver’s consent, and the officer was under no obligation to stop and clarify his statements. (¶¶8, 11).
There’s little case law on the situation presented here, and the cases relied on by the state in the court of appeals differ in important ways. United States v. West, 321 F.3d 649 (7th Cir. 2003) (officer found a duffel bag in a car during a search and asked who owned it; defendant said it was his, but never told the officer he couldn’t search it); Payton v. Commonwealth, 327 S.W.3d 468 (Ky. 2010) (defendant asked the officer for a warrant, but when the officer told him his wife consented to the search, the defendant said, “Fine” or “Well, okay.”). There is, though, an obvious analogy to the not-necessarily-helpful standard governing the assertion of the right to remain silent or to have counsel during custodial interrogation: “Although a suspect need not ‘speak with the discrimination of an Oxford don,’ …, he must articulate his desire to have counsel present sufficiently clearly that a reasonable police officer in the circumstances would understand the statement to be a request for an attorney.” Davis v. United States, 512 U.S. 452, 459 (1994) (quoted source omitted). Wantland isn’t an Oxford don, but it remains to be seen whether his clearly comprehensible question was enough to limit the driver’s consent.