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The Supreme Court has expressed a strong preference that law enforcement officers obtain a search warrant before conducting a search of any kind. Searching a locked container is no different.1 The confusion that surrounds the decision to search a locked container begins when the officer is considering a warrantless search of that container.
The government cannot successfully argue that a law enforcement officer must intrude into a locked container to prevent the immediate retrieval of a weapon. The time required by the suspect to unlock the container and retrieve a weapon would allow the officer adequate time to preserve his safety through other means. The purpose of a frisk is to secure weapons that might become used by the suspect during a face to- face encounter.
Courts have been reluctant to extend this intrusion, based on something less than probable cause, to find items that the suspect may only get to through great difficulty. During a Terry stop, law enforcement officers are entitled to take measures designed to preserve their safety that does not require unnecessary intrusions. For instance, if the suspect is holding a locked container, the law enforcement officer would be justified in separating the suspect from the container. The action preserves the officer’s safety yet requires no intrusion. If the suspect is standing near a locked container, such as the trunk of an automobile, the officer can reposition the suspect.
Of course, the officer may always ask for the person’s consent to open the container. When conducting a Terry frisk, the officer should look for alternative ways to protect him or herself against the contents of a locked container but he or she may not force open the container.
The government has the burden of establishing the voluntariness of consent. When a law enforcement officer conducts a search pursuant to a suspect’s consent, the objective standard of reasonableness determines the parameters of that consent what would the consenter have understood the limits to the search were based on the exchange between the suspect and the law enforcement officer. As this question relates to a locked container, the law enforcement officer must establish that the suspect consented to a search of the locked container.
In Florida v. Jimeno, 500 U.S. 248 (1991) the Supreme Court held that the Fourth Amendment is satisfied when it is objectively reasonable for the officer to believe that the scope of the suspect’s consent permitted a particular container to be opened. Expressed language typically defines the scope of the consent search. The Court noted that it “is very likely unreasonable to think that a suspect, by consenting to the search of his trunk, has agreed to the breaking open of a locked briefcase within the trunk.” However, if an officer can reasonably conclude that the suspect has granted consent to search a particular container, the search is reasonable within the meaning of the Fourth Amendment.
Without a direct exchange concerning a locked container, establishing consent to enter it is not easy. Believing that a person gives permission to destroy their property when they grant a general consent to search their property is unreasonable. Therefore, when an officer obtains a general consent to search the suspect’s property, he or she may not damage or destroy a locked container discovered through that search. Specific consent to open that container should be obtained from the suspect.
We have looked at several legal principles that may or may not allow government intrusion into locked containers. The central feature of this question is to understand why the officer is intruding into protected areas. The law enforcement officer should always remember that the courts will look upon any search conducted without a warrant with suspicion. Oftentimes, the law enforcement officer can dismiss these issues by simply obtaining a valid consent to conduct the search.
When a warrant or consent is not obtainable there are few justifications for opening a locked container. These justifications are limited to containers encountered during a mobile conveyance (Carroll) search, an inventory search and those within an arrestee’s immediate control. Otherwise, it is probably best to refrain from opening the locked container.