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SJC-12273

COMMONWEALTH vs. ANTHONY C. ORTIZ.

Hampden. October 3, 2017. - February 12, 2018.

Present (Sitting at Greenfield): Gants, C.J., Lenk, Gaziano, 

Lowy, Budd, Cypher, & Kafker, JJ.

Constitutional Law, Search and seizure. Search and Seizure, 

Motor vehicle, Consent, Fruits of illegal search. Consent.

Evidence, Result of illegal search.

Indictments found and returned in the Superior Court 

Department on March 25, 2015.

A pretrial motion to suppress evidence was heard by Edward 

J. McDonough, Jr., J.

An application for leave to prosecute an interlocutory 

appeal was allowed by Hines, J., in the Supreme Judicial Court 

for the county of Suffolk, and the appeal was reported by her to 

the Appeals Court. The Supreme Judicial Court granted an 

application for direct appellate review.

Cynthia Cullen Payne, Assistant District Attorney (Bethany 

Lynch, Assistant District Attorney, also present) for the 

Commonwealth.

Patrick Levin, Committee for Public Counsel Services, for 

the defendant.
2

GANTS, C.J. In this case we must decide whether a driver's 

consent to allow the police to search for narcotics or firearms 

"in the vehicle" authorizes a police officer to search under the 

hood of the vehicle and, as part of that search, to remove the 

vehicle's air filter. We hold that it does not. A typical 

reasonable person would understand the scope of such consent to 

be limited to a search of the interior of the vehicle, including 

the trunk. Because the police here exceeded this scope by 

searching under the hood and removing the air filter, and 

because the search was not otherwise supported by probable cause

and was not a lawful inventory search, the Superior Court 

judge's order granting the defendant's motion to suppress is 

affirmed.

Background. We summarize the facts as found by the motion 

judge, supplemented by uncontroverted evidence that the judge 

explicitly or implicitly credited. See Commonwealth v. Isaiah 

I., 448 Mass. 334, 337 (2007), S.C., 450 Mass. 818 (2008). On 

January 23, 2015, Officer Jared Hamel and Detective Boyle1 of the 

Holyoke police department were on patrol in an unmarked police 

cruiser when they heard loud music coming from a vehicle. The 

officers determined that the loud music posed a public safety 

hazard under a local ordinance that prohibits excessively loud 

 

1 The record does not reflect Detective Boyle's first name.
3

music in a motor vehicle. Officer Hamel activated the cruiser 

lights and initiated a stop of the vehicle.

As the officers approached the vehicle, Hamel recognized

the driver (the defendant) as someone he had earlier pursued in 

a foot chase during an incident where the defendant was arrested 

for breaking into an apartment. Hamel also recalled that the 

defendant had been charged in two separate incidents with 

attempted murder and with narcotics and firearms offenses. 

Hamel also recognized one of the two passengers, George Ortiz, 

because he recalled an incident where Ortiz had been arrested 

for trafficking in cocaine after the execution of a search 

warrant.

As a safety precaution, Hamel requested a backup unit to 

provide assistance over the police radio. Hamel then asked the 

defendant for his license and registration. The defendant 

looked at Hamel, and turned for assistance to Ortiz, who spoke 

in Spanish to the defendant. Hamel recalled from his prior 

encounters with the defendant that the defendant "only spoke a 

little English," and understood that Ortiz was translating 

Hamel's request for the defendant's benefit. The defendant 

presented to Hamel a Massachusetts identification card that was 

not a driver's license, which confirmed that the driver was the 

defendant. Hamel asked the other passengers if either had a 

driver's license, and neither did.
4

Hamel asked the defendant in English if there was anything 

in the vehicle that the police should know about, including 

narcotics or firearms. The defendant responded, without 

hesitation and without any translation from Ortiz, "No, you can 

check." Hamel asked the defendant and the two passengers to 

leave the vehicle, and placed all three in handcuffs. All were 

frisked for weapons; none were found, but the two passengers 

were each found in possession of marijuana.

Shortly thereafter, other police officers arrived on the 

scene, including an officer in the K-9 unit; the officer's dog 

walked around the vehicle but did not alert to anything. The 

officers searched the front and back seat areas of the vehicle, 

but found no contraband. Hamel then instructed one of the 

officers to check under the hood of the vehicle. The officers 

raised the hood, and a few minutes later, after removing the air 

filter, Boyle found a black bag that contained two firearms. 

During the course of this search, the defendant was standing to 

the side of the road; at no point did he voice any objection to 

the search.

A few minutes later, the registered owner of the vehicle 

arrived and was allowed to drive the vehicle away. The search 

was conducted based solely on the defendant's consent; the 

police did not consider it to be an inventory search and did not 
5

believe that they had grounds to search the vehicle without a 

warrant.

The defendant and the two passengers were arrested and 

transported to a police station, where a Spanish-speaking police 

officer assisted in taking the defendant's statement. According 

to that officer, the defendant understood English but was more 

comfortable with Spanish. In his statement, the defendant 

admitted, among other things, that the firearms found in the 

vehicle belonged to him and that he gave consent to the officers 

to look in his vehicle.

Indictments were returned by a grand jury, charging the 

defendant, as a habitual offender, with two counts of illegal 

possession of a firearm, two counts of unlawful possession of 

ammunition without an identification card, and one count of 

receiving stolen property. The defendant moved to suppress the 

firearms and the statements he made at the police station, 

claiming that the search was unconstitutional and that the 

statements must be suppressed as fruits of the unconstitutional 

search.

After an evidentiary hearing, a judge of the Superior Court 

allowed the defendant's motion. The judge found that the 

defendant had given his free and voluntary consent to the search

but that, because Hamel had asked the defendant whether he had 

any narcotics or firearms "in the vehicle," the scope of the
6

consent was limited to a search for narcotics or firearms in the 

interior of the vehicle and did not include a search "under the 

hood beneath the air filter." The judge found that a typical 

reasonable person interpreting the verbal exchange between Hamel 

and the defendant "would believe that [the] defendant was 

limiting the scope of the search to the cabin of the vehicle."

The judge also found that the defendant's silence when 

Hamel expanded the scope of the search by directing the other 

officers to search "under the hood" was nothing more than the 

defendant's "mere acquiescence to a claim of lawful authority,"

and therefore did not expand the scope of his initial consent.

Having found that the search of the air filter under the 

vehicle's hood was unconstitutional because it exceeded the 

scope of the defendant's consent, the judge found that the 

defendant's statements to police were "directly caused by the 

illegal search of [the] defendant's vehicle," and therefore were 

"fruits of the poisonous tree" that also must be suppressed.

The Commonwealth applied for interlocutory review, and a 

single justice of this court allowed the application. The 

defendant then filed an application for direct appellate review, 

which we allowed.

Discussion. "In reviewing the allowance of a motion to 

suppress, we accept the judge's findings of fact absent clear 

error." Commonwealth v. Porter P., 456 Mass. 254, 256 (2010). 
7

Where, as here, we find no clear error in the judge's findings, 

"[w]e then determine 'the correctness of the judge's application 

of constitutional principles to the facts as found.'" Id., 

quoting Commonwealth v. Scott, 440 Mass. 642, 646 (2004).

The Commonwealth concedes that the warrantless search of 

the air filter under the hood of the vehicle is constitutional 

under the Fourth Amendment to the United States Constitution and 

art. 14 of the Massachusetts Declaration of Rights only if the 

defendant consented to such a search. When the police rely on 

consent to justify a warrantless search, "the prosecution 'has 

the burden of proving that the consent was, in fact, freely and 

voluntarily given.'" Commonwealth v. Rogers, 444 Mass. 234, 237 

(2005), quoting Bumper v. North Carolina, 391 U.S. 543, 548 

(1968). The Commonwealth must show "consent unfettered by 

coercion, express or implied, and also something more than mere 

'acquiescence to a claim of lawful authority.'" Commonwealth v. 

Walker, 370 Mass. 548, 555, cert. denied, 429 U.S. 943 (1976), 

quoting Bumper, supra at 549. Here, we accept the judge's 

findings that the defendant, despite his limited understanding 

of English, consented to a search of his vehicle. The issue is 

the scope of that consent.

A search that is based on consent may not exceed the scope 

of that consent. See Commonwealth v. Cantalupo, 380 Mass. 173, 

178 (1980) ("Because consent can legitimize what would otherwise 
8

be an unreasonable and illegal search, a search with consent is 

reasonable and legal only to the extent that the individual has 

consented"). "The standard for measuring the scope of a 

suspect's consent under the Fourth Amendment is that of 

'objective' reasonableness -- what would the typical reasonable 

person have understood by the exchange between the officer and 

the suspect?" Florida v. Jimeno, 500 U.S. 248, 251 (1991). See 

Commonwealth v. Gaynor, 443 Mass. 245, 255 (2005).

It bears emphasis that the standard is that of a typical 

reasonable person, not a typical reasonable police officer. 

Therefore, the focus is solely on what a typical reasonable 

person would understand the scope of the consent to be, based on 

the words spoken and the context in which they are spoken, not 

on what a police officer may understand as the places in a 

vehicle where narcotics or firearms may be hidden. 

Consequently, the fact that a police officer, such as Hamel 

here, knows from investigative experience that persons sometimes 

hide firearms and narcotics inside the air filter of a vehicle 

is irrelevant to a reasonable person's understanding of the 

scope of the driver's consent.

In State v. Troxell, 78 S.W.3d 866 (Tenn. 2002), the 

Tennessee Supreme Court confronted similar facts. There, the 

police officer asked the driver whether he had "any weapons in

the vehicle" (emphasis in original). Id. at 872. The driver 
9

responded, "[N]o, nothing." Id. The officer asked, "Okay if we 

take a look?" and the driver answered, "Yeah, go ahead." Id. at 

869. As the court noted, "The verbal exchange therefore 

expressly indicated that the officer intended to search only for 

'weapons' that were 'in the vehicle,' and there was nothing to 

indicate that the search would encompass more than just the 

vehicle's interior." Id. at 872. The court, "applying a common 

sense interpretation to [that] . . . exchange," found that "it 

was objectively reasonable to conclude that the consent to 

search included only the interior of the vehicle and any 

containers that may have contained weapons." Id.

Here, similarly, the exchange between Hamel and the 

defendant indicated that the defendant's consent was limited to 

a search of the interior of the vehicle. Hamel asked the 

defendant if there was anything in the vehicle that the police 

should know about, including narcotics and firearms, to which 

the defendant responded, "No, you can check." These words 

limited the scope of the defendant's consent to a search for 

narcotics and firearms inside the vehicle, that is, the 

passenger compartment and trunk, and containers within those 

areas where narcotics and firearms could reasonably be found. 

See Jimeno, 500 U.S. at 251.2

 

2 The dissent points to several Federal and State court 

decisions where police were authorized, based on the defendant's 
10

The most generous understanding of the defendant's consent 

in this case is that it was ambiguous whether it included the 

engine area under the hood and whether it authorized the police 

to remove the air filter. But the police are not allowed to 

take advantage of such ambiguity when they have the ability to 

resolve it with clarifying questions.

We have held that the voluntariness of consent to a search 

must be unambiguous; "[t]he Commonwealth must provide us with 

more than an ambiguous set of facts that leaves us guessing 

about the meaning of [the] interaction and, ultimately, the 

[consenting person's] words or actions." Commonwealth v. Carr, 

 

consent, to search under the hood of the vehicle. Post at note 

1. But the words, context, and circumstances of the consent in 

this case distinguish it from those cases. For instance, in all 

but one of those cases, consent was given in response to a 

general request to search; unlike in this case, there were no 

words indicating that the scope of the search would be limited 

to items "in the vehicle." In United States v. McSween, 53 F.3d 

684, 685 (5th Cir.), cert. denied, 516 U.S. 874 (1995), the 

police officer asked if the defendant had "any objection to his 

searching the vehicle," to which the defendant replied that he 

did not. And in State v. Lopez, 219 N.C. App. 139, 142 (2012), 

the police officer asked, "[D]o you mind if I search the 

vehicle?" See also Pincherli v. State, 295 Ga. App. 408, 409, 

413 (2008) (police officers' "request for consent was a general 

one" to search vehicle); Hoskins vs. State, Tex. Ct. App., Nos. 

07-03-0053-CR & 07-03-0054-CR (Dec. 23, 2003) ("[N]either 

[officer's] request nor [defendant's] consent limited the scope 

of the search," where police officer asked for consent to search 

vehicle). In the one cited case where the United States Border 

Patrol agent asked, "May I look inside the truck?," the court 

noted that, "[b]efore the hood was opened the [defendant] gave 

permission for an agent to look in the back of the truck and 

even went so far as to aid in the search." United States v. 

Sierra-Hernandez, 581 F.2d 760, 764 (9th Cir.), cert. denied, 

439 U.S. 936 (1978).
11

458 Mass. 295, 299 (2010), quoting Rogers, 444 Mass. at 238. 

"If either the officer's request or the [person's] response is 

so ambiguous that we are unable to discern whether the [person] 

voluntarily consented to [the search], our inquiry will be over 

and the [search] must be deemed unlawful." Carr, supra, quoting 

Rogers, supra at 238-239. It makes little sense to insist on 

clarity when determining the voluntariness of consent, but not 

when determining the scope of that consent. As a matter of 

logic and constitutional fairness, the requirement of reasonable 

clarity must also apply to the scope of consent.

Our constitutional jurisprudence with respect to consent 

searches is already quite protective of law enforcement. To 

establish that the consent to a search is valid, the 

Commonwealth need not prove that the consenting person knew that 

he or she had a right to refuse consent, or that the person was 

informed of that right. See Schneckloth v. Bustamonte, 412 U.S. 

218, 226-227 (1973); Walker, 370 Mass. at 555. See also Rogers, 

444 Mass. at 246. It suffices that the consent was given 

voluntarily and was "unfettered by coercion"; knowledge or 

ignorance of the right to refuse is simply one factor to be 

considered under the totality of the circumstances. Walker, 

supra. We need not consider here whether it is fair that 

consent to the search of a vehicle can be valid even where it is 

not knowing. But it is fair to conclude that the scope of that 
12

search should not extend into the realm of the ambiguous, 

especially when the police can easily resolve that ambiguity 

with a clarifying question. See, e.g., United States v. Coburn, 

876 F.2d 372, 373-374 (5th Cir. 1989) (after obtaining consent 

to search truck, United States Border Patrol agent specifically 

asked for consent to search gasoline tank).

In Commonwealth v. Clarke, 461 Mass. 336, 351-352 (2012),

where we considered whether a defendant had invoked his right to 

silence after being advised of his Miranda rights, we declared, 

"When law enforcement officials reasonably do not know whether a 

suspect wants to invoke the right to remain silent, there can be 

no dispute that it is a 'good police practice' for them to stop 

questioning on any other subject and ask the suspect to make his 

choice clear." We noted that this "'intuitively sensible 

course' . . . has the benefit both of ensuring protection of the 

right if invoked and of minimizing the chance of suppression of 

subsequent statements at trial if not." Id. at 352, quoting 

Davis v. United States, 512 U.S. 452, 473 (1994) (Souter, J., 

concurring in the judgment). "Far from creating any 'wholly 

irrational obstacles' to police investigation, . . . the process 

of asking, in a brief and even-handed fashion, simple clarifying 

questions does not burden the police." Clarke, supra, quoting 

Michigan v. Mosley, 423 U.S. 96, 102 (1975).
13

We apply this same reasoning to a consent search like this 

one, where the defendant gave consent to the police to search in

his vehicle, but did not with reasonable clarity give the police 

consent to search beneath the hood or to dismantle the air 

filter as part of that search. Under the Fourth Amendment and 

art. 14, unless it is reasonably clear that the consent to 

search extends beyond the interior of the vehicle, the police 

must obtain explicit consent before a vehicular search may 

extend beneath the hood.

Moreover, where such consent is not reasonably clear at the 

outset, the defendant's silence when the police open the hood 

cannot be an adequate substitute for consent. The motion judge 

correctly found that the defendant's silence, while he was in 

handcuffs and had been removed to the side of the street, was 

nothing more than "mere 'acquiescence to a claim of lawful 

authority.'" Walker, 370 Mass. at 555, quoting Bumper, 391 U.S. 

at 549. Nor, for that same reason, can his failure to revoke 

his consent be construed as consent to expand the scope of the 

search beyond the scope to which he had initially consented. 

See 4 W.R. LaFave, Search and Seizure § 8.1(c), at 23 (5th ed. 

2012) ("[A] defendant's failure to object should not be treated 

as expanding a more limited consent, especially when the 

circumstances suggest some other possible reason for [the] 

defendant's silence"). See also United States v. Neely, 564 
14

F.3d 346, 350-351 (4th Cir. 2009) (where defendant consented to 

search of trunk, failure to object did not expand scope to 

include passenger compartment); United States v. Wald, 216 F.3d 

1222, 1228-1229 (10th Cir. 2000) (where defendant consented to 

search of passenger compartment, failure to object did not 

expand scope to include trunk).

Conclusion. To the extent that it exceeded the scope of 

the defendant's consent, the search here of the air filter under 

the hood was unconstitutional. We therefore affirm the motion 

judge's order allowing the defendant's motion to suppress the 

weapons found in the air filter and the defendant's subsequent 

statements at the police station related to his possession of 

those weapons.

So ordered.
CYPHER, J. (dissenting, with whom Gaziano and Kafker, JJ., 

join). I respectfully dissent. Under our constitutional 

framework for evaluating the scope of an individual's consent to 

a search, we ask, "[W]hat would the typical reasonable person 

have understood by the exchange between the officer and the 

suspect?" Florida v. Jimeno, 500 U.S. 248, 251 (1991). This 

requires that we consider the particular facts and circumstances 

surrounding the exchange, including the "expressed object" of 

the search, id., and whether the individual exercised his or her 

right to limit the scope of the search to particular areas. 

Commonwealth v. Gaynor, 443 Mass. 245, 256 (2005). Applying 

these principles to the facts of this case, I disagree with the 

court that the defendant's consent was limited to the interior 

and trunk of the vehicle. In my view, the defendant's 

unqualified and unambiguous general consent to search for "any 

narcotics or firearms in the vehicle," coupled with the 

defendant's failure to object as the search moved from the 

interior of the vehicle to beneath its hood, would indicate to 

"the typical reasonable person" that the defendant had 

authorized the entire search at issue, including the officers' 

limited search beneath the hood and under the air filter of the 

engine.1

 

1 Numerous Federal and State courts have reached the same or 

similar conclusions on this issue. See United States v. 
2

I find the principal case relied on by the court, State v. 

Troxell, 78 S.W.3d 866 (Tenn. 2002), distinguishable on both the 

law and the facts. As the court points out, the precise

language used during the verbal exchange between the defendant 

and officer in each case was the same: there, as here, the 

defendant granted the police permission to search for contraband 

"in the vehicle." Id. at 869. Applying "a common sense 

interpretation to the verbal exchange," the Troxell court 

concluded that "in the vehicle" referred "only [to] the interior 

of the vehicle," id. at 872, that is, the passenger compartment. 

(The defendant in that case argued that his consent "was limited 

in scope to the interior compartment of the pickup truck." Id.) 

The court in this case goes one step further than Troxell, 

interpreting the very same language to refer not only to the 

 

McSween, 53 F.3d 684, 688-689 (5th Cir.), cert. denied, 516 U.S. 

874 (1995) (suspect's general consent to search vehicle, coupled 

with his failure to object to breadth of search, authorized 

police to search under vehicle's hood); United States v. SierraHernandez, 581 F.2d 760, 764 (9th Cir.), cert. denied, 439 U.S. 

936 (1978) (search beneath hood within scope of suspect's 

general consent); Pincherli v. State, 295 Ga. App. 408, 412-413 

(2008) (same); State v. Lopez, 219 N.C. App. 139, 142, 148-149 

(2012) (general consent to "search the vehicle" for weapons or 

drugs "included under the hood and in the air filter 

compartment"); Hoskins vs. State, Nos. 07-03-0053-CR & 07-03-

0054-CR (Tex. App. Dec. 23, 2003) (search beneath hood within 

scope of suspect's general consent). Cf. People v. Kats, 2012 

IL App (3d) 100683, ¶¶ 28-30 (consent to search "vehicle and its 

contents for contraband" authorized search behind vehicle's door 

panel); State v. Powell, 294 N.J. Super. 557, 562-563 (1996) 

(general consent to search authorized removal of side panel of 

vehicle's door).
3

passenger compartment but also the trunk of the vehicle. I do 

not see a meaningful difference in this context between a 

vehicle's trunk and its engine: both are beyond the passenger 

compartment and must be opened separately.

I also believe the Troxell court's narrow focus on the 

colloquial use of the term "in" ignores the important fact that 

these were not casual exchanges between two civilians, but 

inquiries about the possible possession of illegal contraband 

between one civilian and a police officer, which an objective 

bystander would doubtless take into account when interpreting 

the exchange. See Jimeno, 500 U.S. at 251 ("[W]hat would the 

typical reasonable person have understood by the exchange 

between the officer and the suspect?" [emphasis added]).

Moreover, the court in Troxell, 78 S.W.3d at 872, noted 

that it was "worth emphasizing" additional facts about the 

encounter beyond the particular language used: the officer 

requested the defendant's consent only after he had completed 

his investigation into the traffic offense that prompted the 

stop to begin with; more significantly, even, the court pointed 

out that the officers relied on the defendant's general consent 

to conduct "an extensive, nearly [twenty-]minute search of the 

interior of the vehicle and its contents and conducted a sweep 

of the vehicle by using a drug detection dog. Despite finding 

no evidence of weapons or drugs, [the officer] . . . continued 
4

the detention of the defendant by then crawling under an 

examining the underside and gas tank of the vehicle." Id. at 

872-873. As the facts of the case reveal, the officer then 

"instructed the defendant to drive to a service station so the 

gas tank could be removed." Id. at 869. Only then did the 

officers discover drugs in the vehicle.

Cases in this area indicate that, apart from the specific 

language used by a defendant when authorizing a search, the 

command of the Fourth Amendment to the United States 

Constitution that a search be "reasonable" also mandates that 

police may not rely on generalized consent to conduct a 

forcible, destructive, or unnecessarily prolonged search. See, 

e.g., Jimeno, 500 U.S. at 251-252 ("It is very likely 

unreasonable to think that a suspect, by consenting to the 

search of his trunk [of a vehicle], has agreed to the breaking 

open of a locked briefcase within the trunk"); United States v. 

Strickland, 902 F.2d 937, 941-942 (11th Cir. 1990) (consent to 

search of vehicle's trunk for contraband did not include 

slashing open of spare tire). When a consented-to search of a 

vehicle turns into a protracted, fruitless search for drugs, 

followed by a request from the police that the driver bring the 

vehicle to a body shop for the physical dismantling of its 

parts, that search runs counter to this principle, and it is 

therefore "unreasonable" within the meaning of the Fourth 
5

Amendment. Those are not the facts of this case, however. 

Here, the stop of the defendant lasted approximately twenty to 

twenty-five minutes from start to finish, only "a few minutes" 

were spent beneath the hood of the vehicle, and there is no 

indication that the police used tools or damaged the vehicle in 

any way.

I further disagree with the court that the scope of the 

defendant's consent was in any way ambiguous. The exchange 

between the police and the defendant left no doubt as to the

areas and objects of the intended search: an officer asked the 

defendant if there were "any narcotics or firearms in the 

vehicle." The defendant replied, immediately and without 

hesitation, "No, you can check." His "words placed no 

limitations on the scope of the search to which he was 

consenting." Commonwealth v. Cantalupo, 380 Mass. 173, 179 

(1980). Accordingly, the officers were authorized to search the 

vehicle for "narcotics [and] firearms" wherever they might 

reasonably be found "in the vehicle." Jimeno, 500 U.S. at 251. 

This included the limited search beneath the hood and under the 

air filter -- a space that this court has acknowledged may 

conceal contraband. Cf. Commonwealth v. Bakoian, 412 Mass. 295, 

305 (1992) (search beneath hood and under air filter valid 

component of probable cause-based search of vehicle for 
6

narcotics, during which police are authorized to search any part 

of vehicle that "may conceal" drugs [citation omitted]).

Finally, to the extent the defendant's general consent left 

any ambiguity over its proper scope (although I find none), the 

defendant's failure to object as the officers moved from the 

interior of the vehicle to beneath its hood is only further 

evidence that he similarly authorized that portion of the 

search. See, e.g., United States v. Jones, 356 F.3d 529, 534 

(4th Cir.), cert. denied, 541 U.S. 952 (2004) ("a suspect's 

failure to object [or withdraw his consent] when an officer 

exceeds limits allegedly set by the suspect is a strong 

indicator that the search was within the proper bounds of the 

consent search"). To be clear, I do not interpret the 

defendant's silence "as expanding a more limited consent," 4 

W.R. LaFave, Search and Seizure § 8.1(c) (5th ed. 2012). 

Rather, I view the original scope of his generalized, 

unqualified response to have included beneath the hood, and I 

interpret his silence as the police searched that area of the 

vehicle as but additional evidence that it fell within the 

defendant's permission. The motion judge, and now the court, 

discount this important point, that "[a]lthough it is a 

suspect's right to limit the scope of a search to which he 

consents, . . . the defendant did not avail himself of that 

right." Gaynor, 443 Mass. at 256. I am not convinced that the 
7

fact that the defendant was in handcuffs during the search 

automatically converts his silence into "mere acquiescence to a 

claim of lawful authority," as the motion judge and the court

characterize it. Just as a defendant may freely and voluntarily 

consent to a search despite being under arrest, Commonwealth v. 

Franco, 419 Mass. 635, 642 (1995), so too may a defendant's 

other actions (or inaction) while in handcuffs factor into our 

analysis of the scope of a consent-based search.