In Florida v. Jimeno, 500 U.S. 248 (1991), the Supreme Court held that upon obtaining general consent to search an area, the Fourth Amendment allows an officer to open a closed container found within the area that might reasonably contain the object of the search. Id. at 251. But the Court contrasted the opening of the paper bag at issue in Jimeno with the “very likely unreasonable” circumstance in which an officer assumed consent to “pry open” a locked briefcase found” in the area.
A recently filed certiorari petition in Gonzelez-Badillo v. United States, No. 17-696 (U.S. Nov. 9, 2017) (cert. petition filed), asks the Court to decide a question left open in Jimeno that has sharply divided the Circuit Courts: “[w]hether, upon obtaining general consent to search a bag or other area, law enforcement may, consistent with the Fourth Amendment, ‘pry open’ or otherwise cause intentional damages to personal property found within that might reasonably hold the object of the search.” The Fifth Circuit below said yes in a 2 to 1 decision, holding that, upon obtaining the petitioner’s general consent to search his bag, an officer was entitled to pull apart the sole of petitioner’s boot that was inside the bag, without requesting further consent and a warrant. This is also the law in the Second and Third Circuit. See United States v. Mire, 51 F.3d 349, 351-52 (2d Cir. 1995); United States v. Kim, 27 F.3d 947, 950-56 (3d Cir. 1994).
On the other hand, Four Circuits—the Sixth, Seventh, Eighth, and Eleventh—hold that obtaining general consent to search a bag or other area does not permit law enforcement to cause intentional damage to personal property simply because such property might hold the object of the search. See United States v. Torres, 32 F.3d 225, 231-32 (7th Cir. 1994); United States v. Zamora-Garcia, 831 F.3d 979, 983 (8th Cir. 2016) (“[G]eneral consent to a search does not give law enforcement officers license to destroy property.”); United States v. Martinez, 949 F.2d 1117, 1119 (11th Cir. 1992); United States v. Garrido-Santana, 360 F.3d 565, 576 (6th Cir. 2004).
Taking a middle position, the Tenth and D.C. Circuits hold that, so long as officers obtain general consent to search, law enforcement violates the Fourth Amendment only in sofar as it engagtes in “complete and utter destruction” of personal property or “render[s] [it] useless.” United States v. Osage, 235 F.3d 518, 521, 522 n.2 (10th Cir. 2000); see also United States v. Springs, 936 F.2d 1330, 1332, 1335 (D.C. Cir. 1991).