Ruling restricts police in car searches

Friday, Jan. 28, 2000 | 11:02 a.m.

CARSON CITY -- In a victory for individual rights, the Nevada Supreme Court Thursday ruled that police may not ransack a car looking for drugs, weapons or alcohol, even if the owner gives his permission.

"Innocent citizens must not be stopped on the pretext of a traffic violation and have their automobiles dismantled when a police officer has nothing more than a 'hunch' that contraband may be present," said Justice Myron Leavitt, who wrote the majority decision.

The 4-3 decision upholds the ruling of District Judge John McGroarty in Las Vegas, who suppressed evidence of drugs seized during the search of a car driven by Jessie Jackson on Interstate 15. Jackson and his passenger, LaShawn Johnson, were pulled over by Nevada Highway Patrol Lt. Todd Ellison and an investigator for the Nevada Division of Investigation.

According to court documents, the trooper questioned the driver about his destination, if he had any guns, alcohol or drugs in the vehicle. Jackson replied no. When Ellison asked Jackson about drugs, he averted his gaze, looked back to the car, dropped his head and said, "No, you can go ahead and look."

Another patrolman was summoned to the scene. He searched the trunk, the back-seat area by pulling the seat out of the car and then pulled up the carpet in the back-seat area. The patrolman, Russell Owens, then searched the front seat and the dashboard area. He noted the screws on a panel on the dashboard under the glove compartment were not the type normally used in automobiles.

He removed three screws and the panel dropped, exposing three bindles of narcotics, according to court records.

McGroarty, in ruling to suppress the evidence, held that a reasonable person would not have understood his general consent to search a car would authorize the officer to remove screws and pry a panel from the vehicles.

In upholding the District Court ruling, Leavitt posed the question, "Should we allow law enforcement to treat the Fourth Amendment as an obstacle to overcome rather than recognizing the rights of our citizens to be free from unreasonable searches and seizures?

"There was no clear and convincing evidence Jessie consented to the dismantling of the car or that he voluntarily gave up his constitutional right," Leavitt said. "Instead he merely submitted to authority."

Chief Justice Robert Rose agreed with Leavitt in the majority opinion. Justice Deborah Agosti wrote a concurring opinion, said, "I conclude that no reasonable police officer could expect that being told that he can 'go ahead and look' for drugs and by hearing 'yes' in response to the officer's request for permission to search, the officer is entitled to take apart the vehicle."

Justice Miriam Shearing wrote the dissent, saying "Permission to search granted in general terms may be construed as a broad grant of permission to search. Although the burden is upon the government to prove the validity of the search, if a suspect intends to limit the scope of his general consent in any manner, the burden is upon him to do so."