*1 injunсtion on the thoughts standard of review is reviewed for an abuse of dis- cretion).2 to a 568 n. 4. In relegated footnote. Id. at footnote, the that the dissent stated I believe that Because we should appeals generally of de court conducted decide what standard of in applies review bankruptcy review of district novo court case, this respectfully I concur in judg- because the district is func- decisions court ment. tioning as an intermediate court. appellate point This misses the situation
Id. that this one, tell, only
is as far I can where as deciding
the intermediate court will an be
equitable issue for the first time and is the body
proper to decide that for the issue time.
first only
The dissent’s for using other reason America, UNITED STATES equally a de novo standard of is review Plaintiff-Appellant, unpersuasive to me. The dissent believed heightened proper standard of review the court in appeals because as PURCELL, Jr., Frederick good position of a as court the district Defendant-Appellee. equitable make determina- mоotness true, may tion. Id. While this be this is No. 07-5517. not the element when de- considered States Appeals, United Court of
termining the standard of review be Sixth Circuit. and, indeed, applied, one of likely is weakest elements to be considered.1 After Argued: March 2008. facts, has found arguably tribunal we are May Decided Filed: 2008. good of a position weigh as it is to against facts those one We do another. however,
not, re-weigh generally factors reviewing equitable a discretionary, See, e.g., Shopping
decision. Wonderland Mortgage Capi-
Ctr. Venture Ltd. v. CDC Inc.,
tal, (6th Cir.2001)
(noting that the denial of a preliminary Indeed, moot, may 1. appeal well be that the BAP is in a equitably and the was not I position better to decide than we this issue may think we have to determine whether composed The BAP are. is bank- of seasoned equitably the case has become moot judges ruptcy experience who have extensive appeаl time is before us and therefore management bankruptcy cases and should whether we exercise our may determining be therefore better at if un- may over the case. Just because we have winding a implemented plan confirmed and determination, however, make our own does enough consequences will severe disregard we not mean that should the BAP’s appellate stay cause an should its court step decision on issue. The first hand. upon case is review. If review it deter- correct, mined that BAP's decision was unique unexplored 2. One factor question we reach the we need not of whether potential is the case for a double determina- If, equitable upset our should exercise tion mootness. under review, quo standard of the case. the BAP was incorrect status
OPINION MOORE, KAREN NELSON Circuit Judge. asked whether
In this case we are that a discovery of men’s erases for future female claimed to own justified first search of the the officers’ warrantless subsequent thereby bag, making *4 discovery illegal. hold that We any apparent men’s eviscerated that the officers could have authority, but apparent authority by ask- reestablished verify her ing bag owner to supposed to be control over the other Furthermore, exi- we hold that searched. justify not the ille- gent circumstances did the officers in gal search. Because did not reestablish instant case justify proceeding and could by claiming an with a warrantless search district did exigency, we hold that court firearm suppressed err when any apparent after officers discovered Sparks, ARGUED: Andrew Assistant authority dissipated, and we AFFIRM Attorney, Lexington, Ken- States United partial grant of district court’s the defen- Cross, tucky, Appellant. C. for Wende suppress. mоtion to dant’s Associates, Cincinnati, Cross, & Smith Ohio, for ON BRIEF: Andrew Appellee. I. BACKGROUND Wisdom, Jr., P. Sparks, Charles Assistant Background A. Factual Lexington, Attorneys, Ken- United States Cross, tucky, C. Appellant. Wende Special Agent On John June Cincinnati, Cross, Associates, (“Scott”) & Smith Fu- Scott and the Southern Ohio Ohio, (“SO- for Appellee. gitive Apprehension Strike Team FAST”) tip received a that Frederick MOORE, GILMAN, Purcell, (“Purcell”), and escapee
Before: from Jr. SUTTON, Kentucky. Judges. prison, staying at a hotel in Circuit was residing Purcell indicated that was tip with Yolande
MOORE, J., opinion girlfriend, at the hotel his delivered the (“Crist”). court, GILMAN, J., joined. Scott and the other As which hotel, 965-68), SUTTON, of SOFAST drove to the (pp. delivered a members J. they that Purcell part received information separate opinion concurring manufacturer and that Blue “was a meth dissenting part. SOFAST, agencies. runs federal law-enforcement 1. The U.S. Marshal Service employs members of various state Ash[, police] agents Ohio had arrested him for called for assistance from offi- manufacturing meth.” Appendix Joint cers with experience identifying and han- (“J.A.”) Tr., (Hr’g at 64 John Scott Test. at dling methamphetamine labs. 6:23-24). (“Rolf- Agent Matthew Duane Rolfsen hotel,
Upon at the arrival SOFAST sen”) of the Kentucky Northern Drug agents quickly standing identified Purcell Strike Force called to the scene be- outside and arrested him without incident. cause he was certified process metham- arresting Purcell, After Scott and the oth- phetamine labs and had dealt with Purcell agents er SOFAST went to Purcell’s hotel prior Rolfsen, on a Agent occasion. like agents that, room. The were concerned scene, the first to arrive on the given history, what knew of Pur- his also about concerned the hazards that may cell manufacturing have been meth- methamphetamine lab in a hotel room amphetamine in Agent the room. As Scott might pose: noted, basically “I’m agent my an ATF so concern, Our immediate due his past knowledge meth manufacturing is basi- history actually what he serving cally the of it. explosive potential So we time on he escaped, was the meth *5 endangerment concerned about of itself, lab community was for the safety (Scott the guests.” J.A. at 65 at and safety the hotel the patrons’ and 7:15-17). safety in that were the If hotel. there is the officers knocked on door to lab, a meth there is a of lot chemical Purcell’s room and could the hear shower safety hazards. There’s a lot of hazards. running blowing. as well as a fan After a possibility It’s of dying from the fumes minutes, about three the opened Crist door and the chemicals in making involved and assured the there officers that was no methamphetamine. methamphetаmine manufacturing occur- (Rolfsen 33:9-15). J.A. at 81 at ring in room. gave the Crist then her hotel, Upon arriving at Agent the Rolf- consent the quick for officers to take a Agent sen talked to Scott and then con- look the Although around room. Crist ducted cursory his own sweep the hotel would later authorize full of the Agent room. Rolfsen observed the same room, during this first search the agents Scott, suspicious Agent items as but Agent did what Crist authorized them to do: Rolfsen noticed also cookware “consistent perform cursory sweep room. of the manufacturing methamphetamine,” with During room, initial sweep of the cutting “a agent, spoon metal with burnt the agents type bag observed “two duffel material,” torch, “brass material consis- suitcases near the door” and a backpack tent with making pipes use smoke” located between the bed and window at drugs, tubes, “plastic and which is сonsis- some distance from the bags. two duffel snorting drugs.” tent with various J.A. at (Omitted J.A., 16:19-20); at from Scott (Rolfsen 35:2-13). Although at the (Dec. 14, 2006, Tr., J.A. at 95 Hr’g M. Test, agents evidence, identified some such as 58:21-24). Duane at Rolfsen Clothes cookware, that was consistent with floor, covered most of the rest but methamphetamine production, it is notable mess, despite noticed sever- that Agent Rolfsen did smell not items, al suspicious such possible mari- the telltale chemical odors that often ac- juana leaves, wool, torch, steel a butane company methamphetamine Agent labs. the shower operating strength, at full and noted, however, a box blowing fan air out Rolfsen the lack of from shower. items, Having observed these suspicious you’ve smell “once was not conclusive: Shortly room. bags cook, always not a smell. of other done the there’s thereafter, there.” agent much material still found the fire- Depends how another 49:10-14). (Rolfsen at at J.A. brown-green backpack in a that was arm by sitting bags the other closed near of the sweep initial making After his sitting “on the door but instead and room, asked Crist for Rolfsen Agent and by and bed floor the bed between a more to conduct permission received (Rolfsen at at and 58:21- Agent As Rolfsen the window.” J.A. complete search. search, they 24). firearm, asked began the other officers discovering After anything in the there was Crist whether who owned the back- agents asked Crist dangerous, “[s]he and room that could be noted she owned the pack, and Crist room.” was a firearm in the there indicated itself, given had it to backpack but she 36:20-24). (Rolfsen did Crist at at J.A. Purcell for use. his any methamphetamine-related not mention out, it Purcell was the sole As turned that a firearm dangers, she did state but bag containing the firearm of both the user room, al- bags one of marijuana. bag containing and the one. though she was not sure which effects were Purcell’s None the duffel Agent Rolfsen moved toward give permission go he bags, did her green “a pointed the door and bags, she went through his never it this Crist bag” “[i]s brown asked own through them. Crist did the back- be.” responded might that “it bag?” Crist itself, at the pack but time 37:1-3). (Rolfsen Rolf- Agent at J.A. the backpack Purcell exclusive use of opened duffel near sen first that contained the firearm. door, searching as he *6 her bag her because she set “said that was Background B. Procedural (Rolfsen at purse top of it.” at on J.A.
56:6-7).
Agent
Upon opening
bag,
the
August 9,
jury
grand
On
a
indicted
marijuana
no fire-
Rolfsen discovered
but
being
possession
for
a
in
of a
Purcell
felon
marijuana, Agent
arm.
In addition to the
in violation of 18
firearm
U.S.C.
the
not
bag
Rolfsen discovered that
did
justice
§ 922(g)(1),
fugitive
a
from
know-
effеcts,
personal
as one
contain Crist’s
in
of
ingly possessing
firearm violation
but
contained
might expect,
instead
922(g)(2),
§
unlawful
of
18 U.S.C.
an
user
clothing.
men’s
marijuana in
of a
possession
firearm
in-
discovery
The
men’s
of the
922(g)(3),
§
and for
violation of 18 U.S.C.
actually
bag
side the
indicated that was
marijuana
of
possession of
violation
Crist’s,
bag,
Purcell’s
not
as she
844(a).2
§
U.S.C.
complete surprise
This was
claimed.
trial,
21, 2006,
on
Prior to
November
that
agents
for
knew
the
because
suppress
Purcell
a motion to
the
filed
both
in the
Purcell owned some of the items
marijuana that
agents
firearm and the
the
know ini-
though they
room
did not
even
in the
his luggage.
discovered
search of
his;
tially
defi-
were
“[Crist]
23, 2007,
March
the district court
On
nitely
there
in that
said
was
items
[sic]
request
suppress the
granted Purcell’s
to
belonged
room that
Fred Purcell.” J.A.
to
to
request
firearm and denied Purcell’s
(Rolfsen
53:15-16). Although
at 92
at
marijuana.
supрress the
Agent Rolfsen
that
had mis-
realized
Crist
conclusion,
reaching
In
its
the district
the
did not
ownership
bag,
stated her
he
verify
rejected
government’s
ask her to
she owned
court
assertion
whether
ing
2. The
count seek-
forfeiture of
firearm.
indictment also included a
justified
that
the search was
under
search of the
bag.
second
at
J.A.
exception
exigent-circumstances
(Mem.
to the
20).
Op. &
at
Order
The
court
Fourth Amendment.
district
3, 2007,
April
government
On
filed a
legiti-
did not believe that the
reconsideration,
for
asking
motion
the dis
mately
dangers
concerned about the
of a
court
trict
to
Atchley,
use United States v.
completing
lab after
methamphetamine
—
(6th Cir.),
denied,
reason
doubt the
or
to
truthful-
II. ANALYSIS
response
ness
of her
that the duffel
“In assessing
challenge
a
to the
(Mem.
Op.
hers.” J.A. at 31
& Order
ruling
sup
district court’s
on a
to
motion
19).
contrast,
at
In
the district court
press, we
district
review the
court’s factual
apparent
found that Crist’s
authority
error,
findings
legal
for clear
and
con
its
“extinguished with the search of that first
de
v.
clusions
novo.” United States Wal
bag” after the
filled
officers found was
(6th
ler,
838,
Cir.2005);
F.3d
843
with
426
ac
clothing, leaving
men’s
no
with
Atchley,
consent
the
to
to
cord
Our search
ity
exceptiоn
to
a warrant
of
to
Fourth Amend
ly
possess
requires officers
are,
govern
requirements,
a search. There
is the
conducting
“[i]t
ment’s
before
warrant
re
however,
to the
exceptions
prove
the existence of
ment’s burden
‘well-delineated’
of those
quirement. “One
474
at
exigency.” Atchley,
F.3d
851.
person
is the consent
exceptions
a
possible
it is not
to articulate
“While
consent needs
An officer with
searched.
list of circum
yet
succinct
exhaustive
cause to
probable
a
nor
neither warrant
‘exigent,’ we have
qualify
stances
a
search.” United
constitutional
conduct
the situations in
previously characterized
430,
Jenkins,
v.
States
justified as
warrantless entries are
denied,
Cir.1996),
520 U.S.
cert.
categories:
lying
general
within one of four
(1997).
And
L.Ed.2d 543
S.Ct.
(2)
(1)
felon,
fleeing
of
immi
pursuit
hot
a
exceptions
existence
one of
other
(3)
evidence,
of
need
nent destruction
Mincey v. Ari
exigent
of
circumstances.
(4)
suspect’s
prevent
escape,
385, 392-393,
zona,
S.Ct.
U.S.
danger
police
of
to the
or others.”
risk
(1978).
appeal,
On
962 (6th Cir.1994) (Order) (“Although condition, 18 why agents did the dangerous
a
government
§
the
to
permits
U.S.C.
3731
permission
search
ask Crist for
twice
an
appeal from
order
agents were worried
take an immediate
And if the
the room?
why
suppress,
laboratory,
pretrial
a
motion to
methamphetamine
granting
a
about
provide
luggage
in the
that
does not
for
cross-
they searching
statute
questions
Thus,
these
The
while the
appeal by
firearm?
answers
a defendant....
gov-
assertion that the
the
government’s
may
part
the
raise
of
belie
defendants
as
a possible
any
about
argu-
were concerned
appeal
ernment’s
alternative
methamphetamine lab
Purcell’s
supported the
ments which would have
cir-
exigent
hold
may
room. We therefore
...
suppression, they
order of
justify the warrantless
did not
cumstances
arguments as to evidence nоt
any
raise
backpack.
court.”).
of Purcell’s
search
by the district
suppressed
ordered
grant
the
defending
of
motion
When
B. Consent
firearm, Purcell acknowl-
suppressing the
government’s only other
justified
edges
apparent authority
justified
is that
consent
argument
yield-
Crist’s
bag,
search
the first duffel
which
lug
of Purcell’s
the warrantless
search
Br. at
marijuana. Appellee
ed
search,
to a
In order to consent
gage.
(“Thus,
properly
the district court
con-
as
must
purporting
possess
to consent
person
cluded,
upon
officers’] reliance
‘[the
actual or
over
apparent
either
response
bag]
[regarding
first
rea-
place
item or
to be searched. United
sonable,
there was no evidence offered
426,
Caldwell,
F.3d
v.
States
accuracy
suggest reason
doubt the
or
Cir.2008). Once
individual with actual
an
response
truthfulness of her
duffel
”
authority cоnsents to the
or
(quoting
Op.
Mem. &
was hers.’
measuring the
“[t]he standard for
19)).
therefore assume that
dis-
We
suspect’s
scope of
consent under
holding that ap-
trict court was correct in
‘objective’
Amendment
is that
Fourth
justified
parent authority
the search of the
the typical
reasonableness —what would
do, however,
first
hold that
bag. We
nei-
person
by
understood
reasonable
apparent authority justified
ther actual nor
exchange
the officer and the sus
between
yield-
bag,
the search of the second
Jimeno,
248,
Florida
pect?”
v.
U.S.
ed
firearm.
251,
1801,
Purcell did not and was not enti
Matlock,
v.
415 U.S.
171 n.
interlocutory appeal
bring
tled to
chal
(1974).
39 L.Ed.2d
Crist offered
lenging the district court’s denial of his
establishing
marijuana.
testimony
suppress
motion to
uncontroverted
United
Shameizadeh,
personal
267 her
effects were not
Purcell’s
States
*10
Ohio,
1, 21-22,
bags,
ry
exclusive
Purcell exercised
control
392 U.S.
1868,
(1968)).
bags,
gave
his
and Purcell never
deciding
over
Crist
L.Ed.2d 889
In
open
bags.
These fac- whether
acted
permission
reasonably,
his
officers
еstablish that
“[t]he
tors would all tend to
Crist
most we can ask is if the officer’s
authority
interpretation
actual
to consent to
spoken
lacked
of the
words was
bag containing
of the
light
search
Purcell’s
reasonable in
contextual infor-
appeal,
and the firearm. On
how- mation that
the record does contain.”
ever,
Jenkins,
government
does
claim that
not address whether had actual au- room, they the hotel had a good-faith thority to consent to the and we basis to believe Crist had authority simply assume that did not possess she consent. Crist asserted that the duffel authority. actual bag yielded hers, marijuana was and her purse sitting on top of the Authority Apparent 2. duffel bag. Crist’s statements ap crеated “We have held even where parent officers, authority and their third-party consent from an comes individ bag search of the justified duffel be authority ual without actual over the prop good-faith cause acted in reliance erty searched, no Fourth there is Amend upon Crist’s Purcell assertions.3 acknowl ment if police violation conducted the edges in his brief that the officers reason in good faith on reliance the third- ably upon relied Crist’s assertion of au party’s apparent authority to authorize thority over bag. the duffel through the search consent.” her Mor Even if the officers’ search (6th Cir.2006) 660, (find gan, F.3d bag justified by duffel apparent ing apparent authority where a wife authority, apparent authority cannot exist authority claimed to access to her if there ambiguity is as to the asserted In computer). husband’s investigating authority seаrching and the officers do not reasonably whether officers an concluded take steps ambiguity. resolve “The possessed apparent individual authority, government cannot establish that ... its the “determination of consent must ‘be agents reasonably upon a judged against objective par relied third standard: ty’s authority agents, if faced facts to the officer at available situation, with an ambiguous moment ... warrant man of nevertheless reason proceed making caution in without inquiry. able the belief that the further consent If party learn ing enough, had over the do not if the [proper ty]?” v. Rodriguez, Illinois 497 U.S. circumstances make it unclear whether the 188, 110 (1990) property S.Ct. 111 L.Ed.2d subject about to be searched is (second consent, in original) (quoting omission Ter- mutual use person giving opinion dissipated only 3. dissent mischaracterizes our officers discovered requiring “positive police possess knowl- evidence that undermined her assertions of edge” joint access and control before a authority. [person] We ask whether "a permissible. Dissenting Op. search is at 968. of reasonable caution” would believe “that holding Our the search the first consenting party over the was reasonable refutes the dissent’s mistaken [property],” Rodriguez, 497 U.S. at interpretation. knowledge simply Positive hardly S.Ct. which is the onerous stan- required; Crist's uncontradicted state- suggests. dard that the dissent apparent authority ments established *11 964 the being detained outside entry is unlawful without Waller
then warrantless Waller, apartment. F.3d at 846 It would not have been bur- inquiry.” further 426 omitted). (internal to marks for the officers have asked quotation densome to luggage belonged the Howard whether began officers their the Before (or to the him either of women who search, relatively unam the situation prior opening to present apartment) the bag the claimed duffel biguous—Crist standing bag.”). Although Crist was the hers, to and officers had no reason the the room the entire during outside However, once the officers doubt that. search, the never asked Crist bag that first contained men’s found the any clarify authority her over of the other ef clothing personal none of Crist’s Therefore, ap- in the bags room. fects, ambiguity clouded Crist’s authority, justified which the parent backpack.4 to consent to the search bag, dissipated upon of the first the unambiguous aWhen situation starts as discovery of the men’s and was subsequent ambigui but discoveries create reestablished, leaving ap- not Crist without ty, any authority evaporates. apparent authority to consent the search parent Rodriguez, 497 U.S. at See backpack. (“Even the invitation is аccom when that panied explicit assertion government attempts The there, cir person surrounding lives if initial argue even Crist’s assertions conceivably cumstances could be such enough are of control over the not would truth person a reasonable doubt its her apparent authority sustain after inqui not it without further upon act discovery fact clothing, of the men’s (“Of course, Jenkins, ry.”); F.3d at relationship in an Crist was intimate provides infor if consenter additional provided with Purcell another for her basis mation, may in such a change context authority. Being in an intimate manner that no reasonable officer however, a relationship, does not endow maintain assumption.”). the default with additional would-be-consenter of apparent sheen that would ambiguity any appar
Once
erases
the discovery
survive
of evidence that con
аuthority,
ent
is
difficult for
authority.
tradicts
consenter’s asserted
searching officers to
the would-
reestablish
Morgan,
(finding ap
F.3d at
See
authority.
options for
be-consenter’s
a
parent authority from wife’s assertion of
searching
are simple:
officers
either
authority,
common
but not
the fact
from
warrant,
may get
they may simply
or
ask
party granting
consent was
whether he or she
would-be-consenter
wife); Waller,
defendant’s
Thus,
authority over the
discovery
we conclude that the
premises
searched,
and
to be
items
bag
the men’s
in the duffle
Illinois
v. Rodriguez,
185, 189,
U.S.
claimed
created
ambiguity
Crist
was hers
(1990).
to
S.Ct.
apparent authority
sufficient
erase her
L.Ed.2d 148
and necessitated that the officers reestab-
reasonably
The officers
relied on Crist’s
apparent authority.
lish Crist’s
Because
consent to
backpack
search the
for several
the officers
their search
continued
without
Crist,
start,
reasons.
unquestioned
to
had
reestablishing
authority,
Crist’s
authority over the hotel room: She rented
part
the firearm was discovered as
of an
name;
the room in her
she оpened the
illegal
and the district court did not
officers;
door to the
personal
her
ef-
when it
suppressed
err
firearm.
fects were in
room.
No one thus
authority
permit
contests Crist’s
to
III. CONCLUSION
officers to enter the hotel room
reasons,
For the foregoing
we conclude
search it.
exigent
circumstances did not justify
permitted
Once Crist
the officers to en-
search
of the
room and that
room,
ter
the hotel
spaces not
apparent authority
did
have
to consent
already
plain
in
view—-and therefore po-
bag.
to the search of the second
Accord-
tentially
by her
covered
further consent
the district
did
ingly,
court
not err when it
search the room—would have been the
firearm,
suppressed the
and we AFFIRM
bathroom,
closet, the
the dresser and the
partial grant
the district court’s
of the
luggage. Crist’s consent
to search the
supprеss.
motion to
room necessarily
seem
to cover the
SUTTON,
Judge,
Circuit
in
concurring
closet, the
bathroom
the dresser. And
part and
dissenting
part.
areas,
if it
why
covered these
wouldn’t
luggage
non-platonic
cover the
this
cou-
question
at hand is whether
ple particularly
what
after
Crist told the
officers’ search
backpack
was —
Const,
jreasonable.”
officers and
after what
officers saw?
U.S.
amend.
In
“[
IV.
(1)
Crist told the
that she
answering
question,
we know
officers
and Purcell
solely upon
relationship
searches based
consent are
intimate
and that
reasonable,
Bustamonte,
they
stayed
together
Schneckloth v.
the hotel room
218, 222,
days.
412 U.S.
for several
she
And
confirmed that
(2)
(1973),
joint
L.Ed.2d 854
that each
opened
user
first
the officers
was her
urges
Although
many
5. The dissent
court to create
couples
a new
there are no doubt
"itinerant,
travel,
assumption
luggage
they
default
who do
intimate
share
couples sharing
quarters
joint
possible
hardly
close
use
travel habits of some is
indistinguishable
unprecedented expansion
containers within the
sound basis for an
space
occupy.” Dissenting Op.
police authority.
at 967.
on
pos-
of others than
its own
generosity
confirmed
the officers saw
own. What
day.
day
from
permit
getting
the officers
sessions
ator
least confirmed
then
about believ-
two
was unreasonable
What
any exclusivity between
the absence of
ing that Crist had
to consent
*13
pos-
Purcell’s. Crist’s
luggage
and
luggage
of
when she had
the search
the
room.
about the
scattered
sessions were
room,
the
of
the
knew
contents
rented
in the hotel room
bags
None of the
had
bags that were searched and
both
locked, individually marked or otherwise
not
days
there
several
stayed
for
—and
one
the other
naturally affiliated with
or
fugi-
but with a
just
companion
with
the
arrangement of
them. And no clear
companion?
tive
more
that some were
containers indicated
wonder, indeed,
fu-
might
whether
One
alone,
facts
private than others. On these
have
gitives
any legitimate expectation
to
for officers
it would seem reasonable
belongings.
their
Individuals
privacy
sharing
a bed would
couple
infer
a
parole,
prison
released from
on
with
unmarked,
and
unlocked
share access
consent,
substantially
government’s
luggage.
androgynous-looking
privacy rights, making
diminished
reason-
But
authorized a
there is more. Crist
unaccompanied by
searches
a warrant
able
targeted
and she also knew
suspicion.
and without individualized
See
gave
two
general
bags
she
contents
843, 856,
v.
California,
Samson
U.S.
After
permission
the officers
search.
(2006).
2193,
L.Ed.2d
126 S.Ct.
a
allowing
sweep of the
protеctive
necessarily
who
Why
fugitive,
reward a
room,
specifically
Crist
consented to the
government’s
con-
prison
left
without
they
for a “firearm” when
officers’ search
sent, by giving him more constitutional
if
room
“anything
asked
there was
in the
than
escaped
he had before he
privacy
that could hurt” them.
JA
She “di-
84.
prison?
Roy,
from
v.
See United States
to look in certain
rect[ed] [the officers]
(2d Cir.1984)
108,
(holding
bags
believed that was where
because she
fugitive
that a
has no more Fourth Amend-
be,
gun” might
JA
which itself
rights
he
prison
ment
than when was
And
bags.
confirmed mutual access
contrary
part because
determination
“[a]
in a
orange peels
when the officers found
judicial encouragement
offer
to the
bag,
bag marijuana
first duffel
escape
escapee
act of
would reward an
and
orange peels
told them that
Crist
conduct”).
illegal
his
fresh,”
“help[
marijuana]
JA
kеep
]
[the
further
mutual access to the
suggesting
But we
climb
now.
need not
that wall
An
bag.
“knowledge of
individual’s
a fugitive
Purcell’s
at a
known status
space
contents” of a searched
bolsters
to the
minimum contributed
reasonable-
an
on
reasonableness of
officer’s reliance
judgment
ness of
officers’
to the
that individual’s
to consent
to consent
the search
Grayer,
232 Fed.
search. United States
luggage.
The officers could reason-
2007).
Apr.5,
Cir.
Appx.
infer
did
ably
bring
that Purcell
with him
he
backpack
duffel
however,
strikingly,
Most
Purcell was
pos-
from
And
it is
escaped
prison.
while
traveler;
an everyday
fugi-
he was a
that he
after his
purchased
sible
tive. As the
well knew in arrest-
officers
escape,
question;
not the
the issue
is
Purcell
ing
entered the hotel
before
reasonably
an
room,
whether
officer could
con-
is
prison
he
a member
escapee,
the lаm
living
clude that
individual
on
group
generally
lightly
of a
travels
likely
sharing
an intimate trav-
rely
luggage
more
on
with
eling companion
indeed turned out to must be viewed to undermine rather than
—as
be the case. The officers’ reliance on all of
reinforce the inference of mutual use es-
these circumstances in the end turns on capes me.
It is no more unusual for a
precisely the kinds of “factual
prac-
fugitive
keep
his clothes in a compan-
tical
everyday
considerations of
life on ion’s luggage than it is unusual for
fugi-
prudent”
which reasonable and
officers
stay
tive to
in a hotel
in a compan-
rented
act,
States,
may
Brinegar v. United
338 ion’s name. The circumstances
made
160, 175,
U.S.
faced similar situation. Ballesteros, Petitioners, appar- purse, of a it held floral over authority exists containers ent space “the jointly living unless occupied MUKASEY, Attorney Michael B. ... reliable information police States, General of the United under authorizer’s the container is not Respondent. ques- 1041. real “[T]he control.” Id. at searches,” Judge container tion for closed No. 07-2487. the risk of recognized, way “is
Wood of Appeals, United States Court uncertainty run.” The court should Id. Circuit. Seventh question rejecting a com- resolved this majority to the one the em- parable rule Argued April 2008. be today uncertainty braces should —that 2,May Decided 2008. by making “per- resolved consent searches police *15 positive missible if the also
knowledge that the closed container is person
under who rule
originally consented”' —because such a impossible
“would on impose burden police. It mean could
never search closed containers within rooms)
dwelling (including hotel without being whose
asking person consent is every they might
given ex ante about item (second at 1041-42 em-
encounter.” Id. added).
phasis At least one other circuit this view.
has embraced See United Navarro,
States
Cir.1999) (holding apparent authority
existed where there was no evidence luggage
the consenter “advised that the his”). vehicle We should do majority seeing
the same here.
differently, I respectfully dissent from
part of its opinion.