Scope of Consent to Search closed containers at issue in case before the United States Supreme Court

The United States Supreme Court is considering an appeal in the case of Gonzalez-Badillo v. Unites States which will address the issue of whether a general consent to search justifies searching a closed container under the Fourth Amendment.  In the Badillo case, the defendant gave a general consent to search as he was at a bus station.  The officer inspected the bags of the defendant and thought his shoes were lumpy.  The officer could see plastic inside the slit of the sole of the shoe but could not see anything illegal.  The officer opened up the sole without obtaining further consent for the search.

The Fifth Circuit found that the search was lawful because once the officer told the defendant that he was looking for anything illegal, the defendant could expect that he would search any item that might contain drugs.  The Court further concluded that the boots were suspicious and that the defendant failed to object during the search made the consent valid.

Dissenting Justice Elrod of the Fifth Circuit found that a general consent to search cannot be interpreted as authorization to destroy personal property during the search.  Justice Elrod found that consent to search which includes unlocked containers cannot be said to include the right to damage property found within the containers.

This issue has divided the federal courts of appeal regarding the scope of consent to search.  The petition for certiorari, filed by the defendant in this case, raises the division among the appellate courts.  This case has important implications for the scope of the Fourth Amendment.  The decision of the lower court eroded the defendant’s Fourth Amendment rights by allowing the consent to justify the officer destroying the property as part of the search.  Given the important Fourth Amendment implications, I would expect the United States Supreme Court to grant certiorari.  You can read the filing from the case on the Scotus Blog.

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