Consent Searches and Outbuildings

The scope of a suspect’s consent to search is determined objectively, by “what . . . the typical reasonable person [would] have understood by the exchange between the officer and the suspect.” Florida v. Jimeno, 500 U.S. 248 (1991). There is a split of authority regarding whether a reasonable person would understand consent to search a residence as including consent to search associated outbuildings. Compare, e.g., State v. Billups, 575 P.2d 323 (Ariz. 1978) (consent to search house did not include search of shed behind house), with, e.g., Commonwealth v. Eckert, 368 A.2d 794 (Pa. 1976) (consent to search residence did include search of storage shed). See generally 4 Wayne R. LaFave, Search and Seizure § 8.1(c) (4^th ed. 2004) (discussing split and expressing “serious question” about the result in Eckert). Until this week, no North Carolina appellate court had ruled on this issue. That changed in State v. Hagin. In Hagin, officers suspected the defendant of manufacturing methamphetamine, so they went to his house and asked for consent to search. The defendant signed a form consenting to a search of “the personal or real property” at the defendant’s address, described as a “[s]ingle wide mobile home, brown in color with a covered wooden porch.” The officers searched the mobile home, apparently finding nothing. Then, accompanied by the defendant, they searched “a small outbuilding located approximately 15-20 feet from the back porch of the mobile home,” finding materials used in manufacturing methamphetamine. The defendant was charged with manufacturing methamphetamine. He moved to suppress, arguing that the search of the shed exceeded the scope of his consent. The motion was denied, and the defendant pled guilty, reserving his right to appeal. The court of appeals affirmed. It noted that in the search warrant context, a warrant for a residence generally authorizes the search of associated outbuildings. State v. Travatello, 24 N.C. App. 511 (1975) (“The search of defendant's premises did not exceed the scope of the warrant by including a tool shed as well as the house itself.”); State v. Trapper, 48 N.C. App. 481 (1980) (warrant directing officer to search “housetrailer” included a shed 30 feet away from the trailer because it was within the trailer’s curtilage). The court found these cases analogous, and adopted the same rule for consent searches. The court also emphasized that the “defendant made no objection to the search of the outbuilding,” finding this to be “some evidence that at the time of the search he believed the outbuilding to be within the scope of his consent.” One could reasonably argue that the defendant’s after-the-fact behavior shouldn’t matter beacuse the scope of consent is determined by “the exchange between the officer and the suspect,” and that the defendant’s view about the scope of consent shouldn’t matter because the scope is to be determined objectively. Still, a number of courts have found a defendant’s acquiescence or nonacquiescence relevant in determining whether a particular search exceeded the scope of the defendant’s consent. See, e.g., State v. Stone, 362 N.C. 50 (2007) (defendant objected to search of his underwear after giving general consent to a search of his person; “while not dispositive of the reasonableness of the search, [defendant’s objection] is an indication that it exceeded his expectations”); United States v. Neely, 564 F.3d 346 (2009) (per curiam) (good discussion of when acquiescence is relevant and when it is not); LaFave, supra (relevant whether “the consenting party stands by and watches that activity without voicing any objection”).