HI: Consent to search for firearms and ammunition did not permit search of wallet

Defendant consented to search of his car for firearms and ammunition, which was stated in the consent form. Searching a wallet exceeded the scope of the consent. State v. Thornton, 121 Haw. 533, 221 P.3d 511 (2009):

Hence, “[c]onsent to search a general area will not validate the search of a specific area or item if that specific area or item is in fact surrounded by an independent privacy interest.” Mahone, 67 Haw. at 648, 701 P.2d at 174. Moreover, “[s]peculation or curiosity cannot provide the sole basis to legitimize warrantless searches or seizures.” State v. Reed, 70 Haw. 107, 114, 762 P.2d 803, 807 (1988); State v. Kaluna, 55 Haw. 361, 371, 520 P.2d 51, 59 (1974) (suppressing evidence of narcotics wrapped in a tissue and found during a pre-incarceration search because (1) “[f]rom an objective standpoint, it was unlikely that the small packet secreted a weapon which the defendant could have used to escape or harm her captors[,]” and “even if it had contained a small weapon, such as a razor blade, once the packet was in [the police matron’s] possession there was no further danger that the defendant could use it”; and (2) the defendant was originally arrested for attempted robbery and the police matron “had neither a belief that [the tissue] contained instrumentalities [of the crime of attempted robbery] nor any grounds to suspect that it contained drugs. Her sole purpose in unfolding the tissue was to satisfy her curiosity–a purpose which is clearly improper.”).

A search for firearms and ammunition pursuant to consent exceeds the scope of consent when either the characteristics of the area to be searched, or the investigating officer’s observations, do not reasonably suggest the presence of firearms or ammunition. See, e.g., State v. Younger, 305 N.J. Super. 250, 702 A.2d 477, 479-80 (N.J. Super. Ct. App. Div. 1997) (opening a closed, pliable, three-inch-by-two-inch vinyl change purse which had an identity card sticking out and contained heroin exceeded the scope of a consent to search for a handgun inasmuch as the police officer “conceded that the purse obviously could not have contained a gun and that anything sharp or hard that might have been inside it could have been felt without opening it” and the police officer also admitted that he had searched the purse for identification and ammunition); Foster v. State, 285 Ga. App. 441, 646 S.E.2d 302, 306 (Ga. Ct. App. 2007) (holding that the defendant’s consent to a “search of his pockets for weapons cannot be interpreted as having extended so far as to have authorized [the police officer] to remove the contents of [the defendant’s] pockets unless he came upon something that felt like a weapon or an object immediately identifiable as contraband. According to [the police officer], he felt neither.”). See also State v. Barnes, 58 Haw. 333, 339, 568 P.2d 1207, 1212 (1977) (“There was nothing in the conduct of the defendant, or in the nature and appearance of the brown paper bag, that could have led the officer reasonably to believe that it contained a weapon …. [I]n no way could the arresting officer have known of the marijuana in the brown paper bag without first seizing it and examining its contents.”); State v. Huether, 453 N.W.2d 778, 782 (N.D. 1990) (concluding that although the driver consented to a search for open containers of alcohol, the small paper bag tucked under the car seat “had neither the weight nor the shape of an alcoholic beverage container” and it “became obvious” that the bag could not have held a bottle or can “once the officer pulled it from under the seat”).