STATE OF FLORIDA, PETITIONER V. LUZ PIEDAD JIMENO AND ENIO JIMENO

   No. 90-622

   In The Supreme Court Of The United States

   October Term, 1990

   On Writ Of Certiorari To The Supreme Court Of Florida

   Brief For The United States As Amicus Curiae Supporting Petitioner

            TABLE OF CONTENTS
   Question Presented
   Interest of the United States
   Statement
   Summary of argument
   Argument:
      A general and unrestricted consent to search a car
      authorizes the opening of closed containers found
      during the search
      A. The scope of a consent search depends on the
         terms of the authorization, objectively viewed
      B. A general consent to search a car for narcotics
         authorizes the search of all containers inside the
         car that might contain narcotics and can be
         opened without causing property damage
      C. The consent given in this case should be construed
         to cover the closed paper bag found on
         the floor of the car's passenger compartment
   Conclusion

                          QUESTION PRESENTED

   Whether the police violated the Fourth Amendment when, after
obtaining consent to search respondents' automobile for drugs, they
opened a paper bag that they found lying on the floor in the passenger
compartment of the car.

                     INTEREST OF THE UNITED STATES

   This case involves the scope of a general consent to search an
automobile when the consenting party puts no special limitations on
his consent.  This issue has arisen, and can be expected repeatedly to
arise, in prosecutions under a number of federal statutes, including
those involving drug and firearms offenses.  See, e.g., United States
v. Anderson, 859 F.2d 1171 (3d Cir. 1988);  United States v.
Kapperman, 764 F.2d 786, 794 (11th Cir. 1985);  United States v.
Covello, 657 F.2d 151, 155 (7th Cir. 1981).  The United States
therefore has a direct and substantial law enforcement interest in the
disposition of this case.

                               STATEMENT

   1. On the afternoon of July 20, 1988, Miami police officer Frank
Trujillo saw respondent Enio Jimeno and his wife, respondent Luz
Jimeno, drive into a parking lot and get out of their car.
Co-defendant Cesar Tabares, who was sitting in the back seat, also got
out of the car at that time.  Enio Jimeno made several telephone calls
from a pay telephone;  Officer Trujillo overheard part of one of the
conversations, which made him suspect that the Jimenos were engaged in
drug trafficking.  Pet. App. A5-A6;  Suppression Hearing Tr. 15-19.

   The Jimenos and Tabares returned to the car and drove to a nearby
apartment complex.  After the Jimenos and Tabares had been inside the
apartment building for a few minutes, Tabares returned to the car,
picked up a brown paper bag with a colored fabric around it, and went
back into the building.  After about 15 to 20 minutes, the two Jimenos
and Tabares returned to the car.  Enio Jimeno was carrying a briefcase
and the brown paper bag that Tabares had taken into the apartment.  As
they got into the car, Enio Jimeno gave Tabares the paper bag.
Tabares took the fabric off the bag and handed it back to Luz Jimeno,
who was sitting in the front passenger seat.  She put the bag on the
floorboard of the car at her feet.  Pet. App. A6;  Suppression Hearing
Tr. 20-21.

   Officer Trujillo followed the car as it left the apartment complex.
 He pulled the car over after he saw it make a right turn at a red
light without stopping.  Pet. App. A6;  Suppression Hearing Tr. 21-22.
 /1/ Enio Jimeno got out of the car and walked toward Officer
Trujillo.  Officer Trujillo identified himself as a police officer,
told Jimeno he had run a red light, and asked to see Jimeno's driver's
license.  Suppression Hearing Tr. 22.  After examining the license,
Officer Trujillo said (id. at 23):

      Sir, Mr. Jimeno, the reason I'm stopping you -- in addition to
      the traffic infraction, I am conducting a narcotics
      investigation where I have suspicion to believe you are carrying
      narcotics in your car.

Officer Trujillo then asked Jimeno for permission to search the car.
He explained that Jimeno did not have to consent to a search of the
car, that Jimeno did not have to speak with him, and that Jimeno was
free to leave at any time.  Officer Trujillo added that if Jimeno did
consent to a search of the vehicle, he could tell the officers to stop
at any point during the search.  /2/ Jimeno then gave his consent to a
search of the automobile.  According to Officer Trujillo, Jimeno "said
he had nothing to hide, we could go ahead and search the vehicle."
Pet. App. A6;  Suppression Hearing Tr. 23-24.  /3/

   After the other two passengers got out of the car, Officer Trujillo
went to the passenger side, opened the door, and saw the brown paper
bag on the floorboard.  The bag was rolled up, so that its contents
could not be seen without unfolding and opening it.  Pet. App. A6;
Suppression Hearing Tr. 24, 37, 48, 49.  Officer Trujillo picked up
the bag, opened it, and found a kilogram of cocaine inside.
Suppression Hearing Tr. 26-28.

   2. Following an evidentiary hearing on respondents' motion to
suppress the cocaine, the trial court found that Jimeno had freely
consented to the search of the car.  In addition, the court found that
Officer Trujillo had advised Jimeno that he wanted to search the
vehicle because he was looking for illegal drugs, and the court
acknowledged that respondent "could have assumed that the officer
would have searched the bag." Pet. App. A6.  Nonetheless, the court
suppressed the cocaine.  The court found that Officer Trujillo never
specifically requested permission "to open the bag and examine the
contents," and that respondent "did not specifically consent to the
search of the bag." Citing the Florida Supreme Court's decision in
State v. Wells, 539 So. 2d 464 (1989), aff'd on other grounds, 110 S.
Ct. 1632 (1990), the trial court concluded that, absent a specific
consent to search the bag, "the scope of the consent given did not
extend to the search and seizure of the bag," Pet. App. A6, and that
the search of the bag was therefore unlawful.  /4/

   3. On the State's appeal, the district court of appeal affirmed the
grant of the suppression motion.  Pet. App. A3-A4.  The court held
that "a concededly valid consent to search a motor vehicle for
narcotics" does not permit "a search of a closed paper bag found on
the front floor of the passenger side of that car," id. at A3, because
"consent to a general search for narcotics does not extend to sealed
containers within the general area agreed to by the defendant." Id. at
A4 (internal quotation marks omitted).  The court then certified the
question to the Florida Supreme Court for review.  Ibid.

   4. The Florida Supreme Court affirmed in a brief opinion, with one
justice dissenting.  Pet. App. A1-A2.  The court stated that the case
was controlled by its previous decision in State v. Wells, supra, and
agreed that "consent to search a vehicle does not extend to a closed
container found inside the vehicle." Pet. App. A1.

   In the Wells case, on which the Florida Supreme Court based its
ruling in this case, the defendant had consented to a search of the
trunk of his car.  Upon obtaining access to the trunk with the
defendant's permission, the police discovered a locked suitcase.
Without seeking the defendant's permission to enter the suitcase, the
police forced the lock and opened it, finding marijuana inside.  The
Florida Supreme Court ordered the marijuana to be suppressed.  It held
that if the terms of the consent to search a vehicle do not "convey
permission to break open a locked or sealed container, it is
unreasonable for the police to do so unless the search can be
justified on some other basis." Pet. App. A13.  The Wells court
concluded that "the general consent to look in an automobile trunk * *
* did not constitute permission to pry open a locked piece of luggage
found inside." Pet. App. A14.

                          SUMMARY OF ARGUMENT

   Respondent Enio Jimeno consented, voluntarily and without
restriction, to having a police officer search his car for drugs.  If
a magistrate had issued a warrant to search the car for narcotics, or
if the officer had searched the car on probable cause under the
"automobile exception" to the warrant requirement, the officer
undoubtedly could have opened the paper bag he found inside the car
during the search.  The paper bag would be within the scope of the
authority to search because, absent some express or implied
limitation, the search of a car is reasonably understood to
contemplate not only an examination of the interior features of the
car itself, but also an examination of any containers found inside the
car that might contain the objects for which the search was
authorized.

   The same principle should govern the scope of a consent search.
Because the search of a car is ordinarily understood to contemplate
the search of containers found within it, the search of closed but
unsealed containers should be regarded as within the scope of a
general consent to search a car, as long as the consent is not
limited, expressly or by implication, to exclude such containers.
That principle applies with special force in a case such as this one,
where the police have told the consenting person what they are looking
for before they obtain consent to search, and where the container in
question could reasonably be expected to contain the object of the
search.

   The Florida Supreme Court committed error when it adopted a per se
rule that "the consent to search a vehicle does not extend to a closed
container found inside the vehicle." Pet. App. A1.  It is reasonable
to conclude that a general consent to search a car ordinarily does not
authorize police to break open a locked container or take other steps
that result in significant property damage.  That is because a person
consenting to a search would not ordinarily be understood to consent
to the destruction of a suitcase or other locked container without
explicitly permitting such measures.  But when a person consents to
the search of an automobile, especially a search for items such as
drugs that are usually kept in containers, the authorization to search
would ordinarily be understood to embrace the right to look into
closed containers found within the automobile, if opening those
containers involved no significant damage to property.  In light of
that understanding, and in the absence of some express or implied
restriction on the scope of the consent granted in a particular case,
closed but unsealed containers found in an automobile may lawfully be
opened as part of a consent search of the car.

                               ARGUMENT

   A GENERAL AND UNRESTRICTED CONSENT TO SEARCH A CAR AUTHORIZES THE
OPENING OF CLOSED CONTAINERS FOUND DURING THE SEARCH

   The issue in this case is how broadly to construe a general consent
to search a car, where there is no express or implied limitation on
the scope of the search.  In particular, the case presents the
question whether police who obtain a general consent to search an
automobile for narcotics may open a closed but unsealed container that
they find in the passenger compartment.  In our view, the principles
underlying the law of consent searches compel an affirmative answer.

   A. The Scope Of A Consent Search Depends On The Terms Of The
Authorization, Objectively Viewed

   The Fourth Amendment forbids the police from conducting
"unreasonable" searches or seizures.  A search that is conducted
pursuant to consent is considered "reasonable" even if it is conducted
without either a warrant or probable cause.  Schneckloth v.
Bustamonte, 412 U.S. 218, 219 (1973).  As this Court stated in
Schneckloth, 412 U.S. at 242-243, "(w)hile the Fourth and Fourteenth
Amendments limit the circumstances under which the police can conduct
a search, there is nothing constitutionally suspect in a person's
voluntarily allowing a search." Indeed, because "the community has a
real interest in encouraging consent," id. at 243, this Court has
consistently regarded a "properly conducted" consent search as a
"constitutionally permissible and wholly legitimate aspect of
effective police activity."

   As the Court has explained, consent searches play a unique and
valuable role in law enforcement.  "In situations where the police
have some evidence of illicit activity, but lack probable cause to
arrest or search, a search authorized by a valid consent may be the
only means of obtaining important and reliable evidence." Schneckloth,
412 U.S. at 227.  In part for that reason, the Court has rejected the
argument that "every reasonable presumption ought to be indulged
against" a finding of consent, id. at 243, and it has held that while
the government bears the burden of proving a valid consent, it need
only satisfy a preponderance of the evidence test rather than some
higher standard, United States v. Matlock, 415 U.S. 164, 177-178 n.14
(1974).

   Although consent cases often turn on whether the consent was
validly obtained, an issue sometimes arises as to the scope of the
consent that was given.  In Walter v. United States, 447 U.S. 649, 656
(1980) (plurality opinion), Justice Stevens set forth the principle
that controls such cases:  "When an official search is properly
authorized -- whether by consent or by the issuance of a valid warrant
-- the scope of the search is limited by the terms of its
authorization." A consent to search renders police action reasonable,
and thus not in violation of the Fourth Amendment, as long as the
police respect the terms of the consent.  If the consenting individual
limits his consent -- whether by withdrawing it, by restricting the
area of the search, or by limiting the duration or the intensity of
the search -- the police must respect the limitations imposed.  That
is because a consent search that exceeds the apparent scope of the
consenting party's authorization becomes a warrantless invasion of
privacy without probable cause and is thus unlawful unless there is
some other justification for the search.  See United States v.
Milian-Rodriguez, 759 F.2d 1558, 1563 (11th Cir. 1985);  Mason v.
Pulliam, 557 F.2d 426, 429 (5th Cir. 1977).

   In some cases, the limitations on the scope of the consent are
implied rather than express, but the limitations must still be
respected.  See, e.g., United States v. Dichiarinte, 445 F.2d 126 (7th
Cir. 1971) (consent to search home for narcotics held not to authorize
police to open and read documents found in the course of the search).
The task of the courts in such cases is to determine the scope of the
consent in light of the terms and context in which the consent was
requested and given.

   Sometimes the terms and context of the consent are not particularly
enlightening.  The police may simply request consent to search a
particular area, and the individual may grant the consent without
suggesting any particular limitation on the conduct of the search.  In
those cases, the court must determine what a reasonable officer would
understand to be the scope of the consent.  The test is an objective
one.  Even if an individual subjectively intends to consent to only a
limited search, the police do not violate the reasonableness
requirement of the Fourth Amendment if they act in accordance with
what an objective viewer, knowing all the facts, would understand to
be the scope of the consent granted.  See Illinois v. Rodriguez, 110
S. Ct. 2793, 2799-2801 (1990) (police do not violate the Fourth
Amendment if they reasonably believe a person has authority to consent
to a search of a particular place, even if that belief turns out to be
wrong).

   B. A General Consent To Search A Car For Narcotics Authorizes The
Search Of All Containers Inside The Car That Might Contain Narcotics
And Can Be Opened Without Causing Property Damage

   Where, as in this case, there is nothing to indicate that the
consenting individual wished to restrict the scope of the search, the
limits on the police officers' conduct must be defined by reference to
generally shared expectations about what a consenting party authorizes
the police to do when he consents to a search.  While that question
may be difficult to answer in the abstract, we believe that it can be
answered with some specificity in certain commonly arising cases, such
as a consent search of a car for drugs.  In that setting, an
unqualified consent to search the car should ordinarily be construed
to permit the police to examine any closed containers within the car
that could be used as receptacles for drugs and can be opened without
causing significant property damage.  That conclusion flows from this
Court's analysis in closely related contexts as well as from
principles applicable to the execution of searches generally.

   1. In United States v. Ross, 456 U.S. 798, 820-821 (1982), this
Court addressed the scope of authority to conduct a search of a
vehicle under the "automobile exception" to the Fourth Amendment's
warrant requirement.  Ross established the principle that a
warrantless search of an automobile based on probable cause extends to
closed containers "that may conceal the object of the search." Ross,
456 U.S. at 825.

   The police in Ross stopped a car after being told by an informant
that it contained narcotics.  In the trunk, the officers found a
closed paper bag.  Inside the bag were glassine bags filled with
heroin.  After finding that the search was supported by probable cause
that would justify the issuance of a warrant, the Court upheld the
lawfulness of the search -- including the opening of the paper bag
discovered in the trunk.

   The Court explained that "(a) lawful search of fixed premises
generally extends to the entire area in which the object of the search
may be found and is not limited by the possibility that separate acts
of entry or opening may be required to complete the search." 456 U.S.
at 820-821.  The Court supported its holding by noting, id. at 820
n.26, that "(d)uring virtually the entire history of our country --
whether contraband was transported in a horse-drawn carriage, a 1921
roadster, or a modern automobile -- it has been assumed that a lawful
search of a vehicle would include a search of any container that might
conceal the object of the search." For example, the Court explained,

      a warrant that authorizes an officer to search a home for
      illegal weapons * * * provides authority to open closets,
      chests, drawers, and containers in which the weapon might be
      found.  A warrant to open a footlocker to search for marihuana
      would also authorize the opening of packages found inside.  A
      warrant to search a vehicle would support a search of every part
      of the vehicle that might contain the object of the search.
      When a legitimate search is under way, and when its purpose and
      its limits have been precisely defined, nice distinctions
      between * * * glove compartments, upholstered seats, trunks, and
      wrapped packages, in the case of a vehicle, must give way to the
      interest in the prompt and efficient completion of the task at
      hand.

456 U.S. at 821.  See also Horton v. California, 110 S. Ct. 2301,
2309-2310 & n.10 (1990);  2 W. LaFave, Search and Seizure Section
4.10(b), at 317 (1987) ("It is not necessary, in order to comply with
the Fourth Amendment requirement that the place to be searched be
described with particularity, that the warrant also describe such
receptacles" that might contain the objects of the search).  /5/

   Although Ross involved a probable cause search, the Court's
analysis is instructive with respect to consent searches as well.
While consent in some instances can authorize a more extensive search
than a warrant, /6/ the scope of the officer's authority should not be
restricted simply because the authorization for the search derives
from the defendant's consent rather than from a magistrate's or a
police officer's finding of probable cause.  See Schneckloth v.
Bustamonte, 412 U.S. at 243 ("The actual conduct of (a consent) search
may be precisely the same as if the police had obtained a warrant.");
United States v. McBean, 861 F.2d 1570, 1573 (11th Cir. 1988) ("The
scope of a consent search is defined by the scope of actual consent in
the same way that the scope of a search based upon a search warrant is
defined by the warrant.").

   The Ross Court found that where probable cause or a warrant
authorizes the search of a car for drugs, the authorization to search
containers found within the car is implicit in the authorization to
search the car, even when the probable cause does not relate
specifically to the containers, and even when the containers are not
mentioned in the warrant.  The rationale underlying that rule is that
whatever is in the container is also in the car, so that the authority
to search the container is implicit in the magistrate's authorization
or the authorization provided by probable cause to search the car.

   That rationale is equally applicable to a consent search, where the
containers are so much a part of the car that the consenting party
should naturally expect that they will be searched as part of the
search of the car.  Thus, when an individual gives the police general,
unrestricted permission to search his car for drugs, he cannot
reasonably claim to be surprised when the police look in any closed
but unsealed containers they may find there.  In light of that widely
shared understanding, most courts have held that a general consent
permits the opening of containers found in the place for which consent
was given, particularly in the case of consent searches of cars.  /7/

   2. In addition to the considerations discussed above, there are
other factors that weigh strongly in favor of permitting the search of
a container based on a general consent to search a car for drugs.
First, in a case such as this one, where the person giving consent is
told in advance that the police are looking for drugs, it is entirely
reasonable to conclude that the person's consent extends to containers
in which drugs might be found.  See United States v. Kapperman, 764
F.2d 786, 790, 794 (11th Cir. 1985) (after police explained that they
were looking for drugs, consent to search vehicle permitted search of
unlocked luggage inside "because the officers could reasonably assume
that the narcotics would be found there");  see also United States v.
White, 706 F.2d 806, 808 (7th Cir. 1983) (search of flight bag upheld
even though defendant's consent to search apartment for drugs did not
expressly authorize opening suitcases:  "Since the officers could
reasonably consider that heroin was in the flight bag, the search of
the bag was within the scope of (the defendant's) consent.");  United
States v. Battista, 876 F.2d at 207-208 (consent to search for drugs
justified a search of containers where contraband could be stored).

   Because drugs are often carried in paper bags, a person giving a
general consent to a car search for drugs should be deemed to consent
to a search of any paper bags or other similar containers found inside
the car.  Like money or documents, drugs "rarely are strewn across the
trunk or floor of a car;  since by their very nature such goods must
be withheld from public view, they rarely can be placed in an
automobile unless they are enclosed within some form of container."
United States v. Ross, 456 U.S. at 820.  See also United States v.
Anderson, 859 F.2d 1171, 1176 (3d Cir. 1988) (officer searching
vehicle "for evidence that the drug laws had been violated could not
expect the contraband to be lying in plain view");  United States v.
Kapperman, 764 F.2d at 792 (consent to search car for "documents or
items of property" is "consistent with permitting police to search the
unlocked suitcase, as documents or other items of property cannot
necessarily be expected to be lying loose in an automobile");  United
States v. Covello, 657 F.2d at 154 (letters and papers "would not be
expected to be lying around loose.  They would be contained in
something").  As one court put it, "(p)ermission to search an
automobile is hollow indeed if it does not include permission to
search its contents and component parts." United States v. Milhollan,
599 F.2d 518, 527 (3d Cir.), cert. denied, 444 U.S. 909 (1979).

   Second, if the person who consents to the car search is present
during the search and does not raise any objection to the search of
containers found in the car, the police can reasonably infer that the
person's consent to the car search was not meant to exclude
containers.  See, e.g., United States v. Anderson, 859 F.2d at 1177
(defendant "stood by and watched" police search bag found in trunk,
which is behavior "completely inconsistent with the contention that
(the defendant) retained an expectation of privacy" in the bag);
United States v. Espinosa, 782 F.2d 888, 892 (10th Cir. 1986);  United
States v. Sierra-Hernandez, 581 F.2d 760, 764 (9th Cir. 1978).
Because a person is ordinarily free to withdraw his consent to a
search at any time, his failure to do so when the police begin
examining containers in his presence is a strong indication that he
regards the search of the containers as falling within the scope of
his general consent to the search of the car.

   Finally, the reasonableness of including container searches within
the scope of a consent to search a particular place depends on what is
required to gain access to the contents of the containers.  If the
containers can easily be opened, it is reasonable to treat them as
being within the scope of the consent.  On the other hand, if the
containers are locked or otherwise sealed in a manner that requires
the police to do significant damage to the containers in order to open
them, it is far less likely that the individual meant to authorize the
police to open the containers.  Even a person in a frame of mind to
cooperate with the police would not ordinarily accede to the
destruction of his property simply to accommodate a police request to
conduct a search.  For that reason, an officer ordinarily should not
assume that a consent to search conveys permission to conduct the
search in a way that involves significant property damage.  /8/ See
United States v. Strickland, 902 F.2d 937, 941-942 (11th Cir. 1990)
(consent to search a vehicle does not extend to slashing spare tire);
State v. Koucoules, 343 A.2d 860, 867 (Me. 1974) (consent to search
does not implicitly authorize tearing down a wall of a structure).
See also 3 W. LaFave, Search and Seizure Section 8.1(c), at 161 (1987)
("The police do not have carte blanche to do whatever they please.
Certainly they may not engage in search activity which involves the
destruction of property, and this would seem to bar breaking into
locked containers.").  /9/

   3. In light of these considerations, we submit that the Florida
Supreme Court fell into serious error when it adopted a per se rule
that consent to search a vehicle does not extend to a closed container
found within the vehicle, and particularly when it applied that rule
to a search having the announced purpose of finding drugs.  This new,
sweeping rule fails to take into account any of the analysis we have
discussed above:  it fails to acknowledge the ordinary scope of
searching authority in the analogous setting of a probable cause
search or a search pursuant to a warrant;  it disregards what this
Court has found to be the ordinary understanding of the scope of a
search of an automobile;  and it ignores the special considerations
that apply to consent searches of automobiles for drugs.  Far from
justifying a per se rule barring the search of closed containers, the
considerations discussed above suggest that the ordinary rule should
be quite the opposite:  that absent an express or implied limitation
on the scope of the search, a consent to search a vehicle for
narcotics should authorize the police to open any closed but unsealed
containers found within the vehicle.  We believe that this rule best
accommodates the competing interests in protecting against
unreasonable police interpretations of a consent to search and in
ensuring that the essential law enforcement technique of obtaining and
exploiting consents to search is not hobbled.

   C. The Consent Given In This Case Should Be Construed To Cover The
Closed Paper Bag Found On The Floor Of The Car's Passenger Compartment

   In this case, Officer Trujillo informed respondent Enio Jimeno that
he was looking for narcotics.  Thus, the officer's statement had the
effect of implicitly limiting the search to containers or compartments
that might contain drugs.  Since it was reasonable to believe that
drugs in the car might be found within the paper bag, it follows that
the paper bag was within the scope of the consent given in this case.
Moreover, respondent never objected to the conduct of the search,
including the officer's search of the paper bag, even though
respondent was present at the time.

   As we have noted, the test for assessing the validity and the scope
of a consent to search is an objective one.  The consent should
therefore be construed as permitting a search as extensive as a
reasonable person would expect the officers to conduct under all the
circumstances, taking into account the specific terms and context of
the consent.  Here, the police officer told respondent he was
searching for drugs;  respondent then gave the officer general and
unrestricted permission to search the automobile.  As the trial court
conceded, see Pet. App. A6, under these circumstances, respondent Enio
Jimeno "could have assumed that the officer would have searched the
bag."

   The fact that respondent no doubt hoped that Officer Trujillo would
not search the bag does not affect the validity or the scope of the
consent.  It does not, of course, undercut the trial court's
determination that it was reasonable for Jimeno to expect that the bag
would be searched.  Jimeno may have consented to the search for a
variety of reasons:  he may have believed there was no real hope of
escape and have simply decided to capitulate;  he may have hoped that
the officer, impressed with his cooperative attitude, would overlook
the bag or decide not to search at all;  he may have forgotten just
how conspicuous the bag was in the car;  or he may have been planning
a defense of lack of knowledge, as to which his ready acquiesence in
the request for a search could be put to good effect.  Indeed, it may
even be that Jimeno consented to the search because he was unaware of
what was in the bag and therefore saw no harm in allowing the officer
to search the car.  But whatever Jimeno's motivation, and whatever his
subjective expectations as to the probable scope of Officer Trujillo's
search, a reasonable observer would find respondent's consent to be
unrestricted, and Officer Trujillo's examination of the bag to be
entirely consistent with the authorization to search the car.

   Finally, the search of the paper bag in this case did not require
or result in damage to property.  This is therefore not a case such as
Wells, in which the state court concluded that breaking open a locked
suitcase was not within the scope of the defendant's consent to search
the trunk of his car.  Under these circumstances, unlike the case
where the police must damage a container in order to gain access to
it, a reasonable person would not expect the officer to seek further
consent before opening the package.  The consent that was given in
this case should therefore be construed to authorize the search of the
paper bag in which the police found the cocaine that formed the basis
for the charges in this case.

                              CONCLUSION

   The judgment of the Florida Supreme Court should be reversed.

   Respectfully submitted.

   KENNETH W. STARR

      Solicitor General

   ROBERT S. MUELLER, III

      Assistant Attorney General

   WILLIAM C. BRYSON

      Deputy Solicitor General

   AMY L. WAX

      Assistant to the Solicitor General

   SEAN CONNELLY

      Attorney

   JANUARY 1991

   /1/ Following a suppression hearing at which Officer Trujillo was
the only witness, the trial court made findings of fact, Pet. App.
A5-A6, including that the traffic stop was valid and could have been
made even apart from the suspected drug trafficking, Pet. App. A6.

   /2/ Officer Trujillo said that if Jimeno did not consent to a
search, the officers would seek a search warrant, but he added that a
warrant would not necessarily be issued, because the judge presented
with a request for a warrant could refuse to issue one.  Suppression
Hearing Tr. 23.

   /3/ Before requesting Jimeno's consent to search the car, Officer
Trujillo determined that Jimeno and his wife owned the car.
Suppression Hearing Tr. 24.  It is undisputed that Jimeno had the
authority to consent to a search of the car and that it was therefore
unnecessary for Officer Trujillo to obtain consent for the search from
respondent Luz Jimeno as well.  See United States v. Matlock, 415 U.S.
164, 169-172 (1974).

   /4/ The court denied the motion to suppress as to Tabares on the
ground that he lacked standing to object to the search.  Pet. App. A7.

   /5/ See also, e.g., United States v. Rutkowski, 877 F.2d 139, 141
(1st Cir. 1989) (because the warrant authorized the officers to look
for small items, jewelry, and coins, they were entitled to open a
coffee can and some envelopes);  United States v. Martinez-Zayas, 857
F.2d 122, 133 & n.7 (3d Cir. 1988) (warrant to search house for
cocaine authorized search of purse inside house);  United States v.
DeSimone, 660 F.2d 532 (5th Cir. 1981) (warrant to search car for
marijuana authorized search of suitcases discovered there), cert.
denied, 455 U.S. 1027 (1982).

   /6/ For example, an individual's consent to a general exploratory
search of his property would be valid, while a warrant must
particularize the place to be searched and the things to be seized.

   /7/ See, e.g., United States v. Smith, 901 F.2d 1116, 1118 (D.C.
Cir.), cert. denied, 111 S. Ct. 172 (1990);  United States v.
Battista, 876 F.2d 201 (D.C. Cir. 1989);  United States v. Anderson,
859 F.2d 1171 (3d Cir. 1988);  United States v. Sealey, 830 F.2d 1028,
1032 (9th Cir. 1987);  United States v. Dyer, 784 F.2d 812, 816 (7th
Cir. 1986);  United States v. Kapperman, 764 F.2d 786, 794 (11th Cir.
1985);  United States v. Covello, 657 F.2d 151 (7th Cir. 1981);  Heald
v. State, 492 N.E.2d 671, 680 (Ind. 1986);  State v. Watson, 416 So.
2d 919 (La. 1982);  Gamble v. State, 318 Md. 120, 567 A.2d 95 (1989);
People v. Mirenda, 57 N.Y.2d 261, 442 N.E.2d 49, 455 N.Y.S.2d 752
(1982);  State v. Prahin, 235 Neb. 409, 455 N.W.2d 554 (1990);  State
v. Morocco, 99 N.C. App. 421, 393 S.E.2d 545 (1990);  3 W. LaFave,
Search and Seizure Section 8.1(c), at 161 (1987).

   /8/ Insignificant damage, such as removing a piece of tape in a
manner that tears the top of the paper bag, would not ordinarily
constitute a sufficient degree of damage to call into question whether
the consenting individual would have consented to a search that
resulted in the loss of property.  The case is likely to be different
when the police find it necessary to ruin a briefcase or, to take an
extreme case, cut a hole through the body of a car with an acetylene
torch in order to execute the search.

   /9/ This point, we believe, explains the Florida Supreme Court's
earlier decision in State v. Wells, 539 So. 2d 464 (Fla. 1989), aff'd
on other grounds, 110 S. Ct. 1632 (1990).  In that case, the police
obtained a suspect's consent to look into the trunk of his car.  Based
on that consent, they opened the trunk, encountered a piece of locked
luggage, and broke open the locked luggage with a knife.  The court in
Wells repeatedly emphasized the fact that the police had to break into
the luggage in order to examine it, and it appears that the court
regarded that feature as important to its determination that the
police had exceeded the scope of the consent the suspect had given.
In this case, the Florida Supreme Court appears to have read the Wells
decision more broadly, failing to note the feature of property damage
that was present in Wells and citing Wells for the broad proposition
that consent to search a vehicle "does not extend to a closed
container found inside the vehicle." Pet. App. A1.