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Should Cops Be Allowed to Rip Up Your Stuff While Looking for Drugs?

How the Supreme Court can curtail the destruction of private property during police searches


On April 10, 2015, Alexis Gonzalez-Badillo was standing outside a bus station in Laredo, Texas, waiting to board a bus to Houston. A uniformed police officer was milling about, searching for contraband. Their paths soon crossed, resulting in Gonzalez-Badillo’s arrest and setting off a long legal battle that may conclude at the Supreme Court in the coming months.

The remaining details of that day, which are largely agreed upon by both sides, are rather mundane—not the obvious makings of a blockbuster court case.

Gonzalez-Badillo commented on how humid it was outside. The officer agreed, and asked where he was headed. Gonzalez-Badillo said he was traveling from California to Houston, but ended up on the wrong bus. That the officer found this “suspicious,” according to the government’s court filing, “as he had never heard of someone taking the wrong bus and ending up in Laredo in the four years that he had been working at the bus station.” He asked Gonzalez-Badillo for permission to search his bag, and Gonzalez-Badillo consented.

Inside the bag were two used work boots wrapped in plastic. The officer later testified that he smelled a chemical “masking agent” used in drug trafficking and that the boots felt “lumpy,” and that he could see plastic through a “quarter-sized slit” in one of the boot’s soles. Without asking Gonzalez-Badillo’s permission, the officer tore the sole of the boot and found a bag of heroin. Gonzalez-Badillo pleaded guilty to conspiracy to possess an illicit substance, but reserved his right to challenge how the officer discovered the heroin.

Gonzalez-Badillo v. United States, which is currently before the Supreme Court for potential review, opens a window into the common police practice of consensual searches and could establish a potentially dangerous approach to them. And if the justices take up Gonzalez-Badillo, it would join an assortment of cases this term on digital privacy, vehicle searches, and other Fourth Amendment issues that could set major precedents for American policing.

Generally speaking, the Fourth Amendment prohibits unreasonable searches and seizures by law enforcement officials at all levels of government. But courts have recognized multiple exceptions to this rule, some reasonable and some not. The exception at issue in Gonzalez-Badillo is fairly straightforward: A search can’t be unreasonable if it’s done with the subject’s consent.

What many Americans might find unreasonable, however, is that granting permission to search one’s backpack or handbag would also allow officers to damage or destroy their personal items in the process: The Fifth Circuit Court of Appeals concluded last June that Gonzalez-Badillo’s constitutional rights weren’t violated, and now he is asking the Supreme Court to intervene. “Police officers regularly rely upon the willingness of people to voluntarily consent to searching through their property,” Amir Ali, Gonzalez-Badillo’s lawyer, told me. “If providing that consent to search is providing consent to destroy, they’re undermining that good-faith relationship between police and the community they serve.”

Ahead of his trial, Gonzalez-Badillo challenged the legitimacy of the search under the Fourth Amendment. His general acquiescence to a search of his bag, he argued, did not extend to the destruction of his personal property. A magistrate judge and a district court judge disagreed, prompting him to take a conditional guilty plea. Gonzalez-Badillo then asked the Fifth Circuit Court of Appeals to intervene and toss out the search, which would almost certainly nullify the case against him.

In a 2-1 decision, the Fifth Circuit panel sided with the government based on existing precedents on searching closed containers during a consensual search. “We are not persuaded that Gonzalez-Badillo’s boot should be considered akin to a locked container simply because Officer Nevarez opened up the boot sole to recover drugs,” the majority argued. The panel also dismissed the idea that the boots were rendered any less usable by the damage inflicted to them, noting that they could be glued together again.

Judge Jennifer Elrod disagreed. “I cannot agree with the majority opinion that a ‘typical reasonable person’ would understand or intend consent to a search of a bag to include consent to forcibly dismantle footwear,” she wrote in her dissent. “And it makes no difference that this case involves work boots that can be glued back together, rather than high-end Christian Louboutin pumps: Fourth Amendment protections do not wax and wane based on the monetary value of a citizen’s property.”

Reliable statistics on consensual searches are sparse, and there aren’t figures on how often property is damaged during such searches. But there are indications that citizens rarely refuse requests from officers for a search: In the first half of 2007, for example, Los Angeles police officers said they received consent to search 96.4 percent of pedestrians and 94.5 percent of drivers whom they asked. Since the American public learns from an early age that it should follow officers’ requests whenever possible, these compliance rates aren’t surprising.

Other courts have sent mixed signals on when and how police can damage property during a consensual search. Gonzalez-Badillo’s Supreme Court petition identifies three different approaches to the issue by nine federal appeals courts. The Eighth Circuit ruled in favor of a defendant in 2008 after police cut apart candles he owned, while the Third Circuit sided with officers in 1994 who pried open factory-sealed cans to search for drugs. The Supreme Court hasn’t directly weighed in on the issue: The closest recent precedent is Florida v. Jimeno, a 1991 case in which the justices sided with officers who opened a paper bag during a consensual car search. However, that case didn’t involve the question of damaging personal effects.

Gonzalez-Badillo’s proposed rule to fill that gap is a bright-line requirement that officers get a warrant before damaging a suspect’s personal effects. “The import of a clear rule,” said Ali, his lawyer, “is greater than any number of cases can demonstrate: The vast majority of consensual searches will never lead to civil or criminal litigation, even where law enforcement wrongly inflicts damage upon personal property.”

The federal government is urging the Supreme Court not to take up the case. Its filing disputes the extent of the disagreement within the lower federal courts and downplays how much damage the officer did to the boot in question. Gonzalez-Badillo’s lawyers haven’t yet filed a reply, which will likely come in the next few weeks. The court is likely to decide whether to take the case in March; if it does, oral arguments won’t take place until the justices return for the new term next October.

The petition comes as the court is already debating how law enforcement, the Fourth Amendment, and property rights interact. In Carpenter v. United States, a blockbuster case on whether the government needs a warrant to access cell phone location histories, Justice Neil Gorsuch sketched out a Scalian, property-oriented view of the case that could be favorable to the defendant. That drew some pushback from Justice Samuel Alito, whose line of questioning leaned toward the government’s position that it doesn’t need a warrant in such cases.

The two continued the debate a few weeks later in Byrd v. United States, in which the justices are weighing whether non-renters have privacy protections in a rental car. If Gorsuch’s view carries the day when opinions are released in the coming months, it could bolster suspects’ rights in two of the most contested spheres of policing: digital privacy and traffic stops. A victory for the government’s positions could weaken key legal protections for Americans on both fronts.

If the court takes up Gonzalez-Badillo’s petition, the justices would continue that debate and bring greater clarity to one’s constitutional rights during a consensual search. It’s not hard to imagine circumstances in which an officer’s zeal to uncover evidence could extend to dismantling backpacks and bookbags, jackets and suit coats, laptops and cell phones, and other everyday items. With this case, the justices have an opportunity to defend—or curtail—people’s right to cooperate with police without having their personal property destroyed in the process.