Lead Opinion
MOORE, J., dеlivered the opinion of the court, in which GILMAN, J., joined. SUTTON, J. (pp. 965-68), delivered a separate opinion concurring in part and dissenting in part.
OPINION
In this case we are asked whether the discovery of men’s clothing in a bag that a female claimed to own erases for future bags the apparent authority that justified the officers’ warrantless search of the first bag, thereby making a subsequent search illegal. We hold that the discovery of men’s clothing eviscerated any apparent authority, but that the officers could have reestablished apparent authority by asking the supposed bag owner to verify her control over the other bags to be searched. Furthermore, we hold that exigent circumstances did not justify the illegal search. Because the officers in the instant case did not reestablish apparent authority аnd could not justify proceeding with a warrantless search by claiming an exigency, we hold that district court did not err when it suppressed the firearm that officers discovered after any apparent authority dissipated, and we AFFIRM the district court’s partial grant of the defendant’s motion to suppress.
I. BACKGROUND
A. Factual Background
On June 28, 2006, Special Agent John Scott (“Scott”) and the Southern Ohio Fugitive Apprehension Strike Team (“SO-FAST”)
Upon arrival at the hotеl, the SOFAST agents quickly identified Purcell standing outside and arrested him without incident. After arresting Purcell, Scott and the other SOFAST agents went to Purcell’s hotel room. The agents were concerned that, given what they knew of his history, Purcell may have been manufacturing methamphetamine in the room. As Agent Scott noted, “I’m basically an ATF agent so my knowledge of meth manufacturing is basically the explosive potential of it. So we were concerned about endangerment of the hotel guests.” J.A. at 65 (Scott at 7:15-17).
The officers knocked on the door to Purcell’s room and could hear the shower running as well as a fan blowing. After about three minutes, Crist opened the door and assured the officers that there was no methamphetamine manufacturing occurring in the room. Crist then gave her consent for the officers to take a quick look around the room. Although Crist would later authorize a full search of the room, during this first search the agents did only what Crist authorized them to do: perform a cursory sweep of the room.
During this initial sweep of the room, the agents observed “two duffel type bag suitcases near the door” and a backpack located between the bed and window at some distance from the two duffel bags. (Omitted from J.A., Scott at 16:19-20); J.A. at 95 (Dec. 14, 2006, Hr’g Tr., M. Duane Rolfsen Test, at 58:21-24). Clothes covered most of the rest of the floor, but despite the mess, the agents noticed several suspicious items, such as possible marijuana leaves, steel wool, a butane torch, the shower operating at full strength, and a box fan blowing air out from the shower. Having observed these suspicious items, the agents called for assistance from officers with experience identifying and hаndling methamphetamine labs.
Agent Matthew Duane Rolfsen (“Rolfsen”) of the Northern Kentucky Drug Strike Force was called to the scene because he was certified to process methamphetamine labs and had dealt with Purcell on a prior occasion. Agent Rolfsen, like the first agents to arrive on the scene, was also concerned about the hazards that a methamphetamine lab in a hotel room might pose:
Our immediate concern, due to his past history and what he was actually serving time on when he escaped, was the meth lab itself, was for the community safety and the hotel safety and the patrons’ safety that were in the hotel. If there is a meth lab, there is a lot of chemical hazards. There’s a lot of safety hazards. It’s a possibility of dying from the fumes and the chemicals involved in making methamphetamine.
J.A. at 81 (Rolfsen at 33:9-15).
Upon arriving at the hotel, Agent Rolfsen talked to Agent Scott and then conducted his own cursory sweep of the hotel room. Agent Rolfsen observed the same suspicious items as Agent Scott, but Agent Rolfsen also noticed cookware “consistent with manufacturing methamphetamine,” cutting agent, “a metal spoon with burnt material,” a torch, “brass material consistent with use for making pipes to smoke” drugs, and “plastic tubes, which is consistent with snorting various drugs.” J.A. at 83 (Rolfsen at 35:2-13). Although the agents identified some evidence, such as the cookware, that was consistent with methamphetamine production, it is notable that Agent Rolfsen did not smell any of the telltale chemical odors that often accompany methamphetamine labs. Agent Rolfsen noted, however, that the lack of smell was not conclusive: “once you’ve
After making his initial sweep of the room, Agent Rolfsen asked Crist for and received permission to conduct a more complete search. As Agent Rolfsen and other officers began the search, they asked Crist whether there was anything in the room that could be dangerous, and “[s]he indicated there was a firearm in the room.” J.A. at 84 (Rolfsen at 36:20-24). Crist did not mention any methamphetamine-related dangers, but she did state that a firearm was in one of the bags in the room, although she was not sure which one. Agent Rolfsen moved toward the duffel bags by the door and pointed to “a green brown bag” and asked Crist “[i]s it this bag?” Crist responded that “it might be.” J.A. at 85 (Rolfsen at 37:1-3). Agent Rolfsen opened that first duffel bag near the door, and as he was searching it Crist “said that was her bag bеcause she set her purse on top of it.” J.A. at 94 (Rolfsen at 56:6-7). Upon opening the bag, Agent Rolfsen discovered marijuana but no firearm. In addition to the marijuana, Agent Rolfsen discovered that the bag did not contain Crist’s personal effects, as one might expect, but instead contained only men’s clothing.
The discovery of the men’s clothing inside the bag indicated that it was actually Purcell’s bag, not Crist’s, as she had claimed. This was not a complete surprise for the agents because they knew that Purcell owned some of the items in the room even though they did not know initially which bags were his; “[Crist] definitely said there was [sic] items in that room that belonged to Fred Purcell.” J.A. at 92 (Rolfsen at 53:15-16). Although Agent Rolfsen realized that Crist had misstated her ownership of the bag, he did not ask her to verify whether she owned any of the other bags in the room. Shortly thereafter, аnother agent found the firearm in a brown-green backpack that was not sitting near the other closed bags by the door but was instead sitting “on the floor by the bed and between the bed and the window.” J.A. at 95 (Rolfsen at 58:21-24). After discovering the firearm, the agents asked Crist who owned the backpack, and Crist noted that she owned the backpack itself, but she had given it to Purcell for his use.
As it turned out, Purcell was the sole user of both the bag containing the firearm and the bag containing the marijuana. None of Crist’s effects were in Purcell’s bags, he did not give her permission to go through his bags, and she never went through them. Crist did own the backpack itself, but at the time of the search, Purcell had exclusive use of the backpack that contained the firearm.
B. Procedural Background
On August 9, 2006, a grand jury indicted Purcell for being a felon in possession of a firearm in violation of 18 U.S.C. § 922(g)(1), a fugitive from justice knowingly possessing a firearm in violation of 18 U.S.C. § 922(g)(2), an unlawful user of marijuana in possession of a firearm in violation of 18 U.S.C. § 922(g)(3), and for possession of marijuana in violation of 21 U.S.C. § 844(a).
Prior to trial, on November 21, 2006, Purcell filed a motion to suppress both the firearm and the marijuana that the agents discovered in the search of his luggage. On March 23, 2007, the district court granted Purcell’s request to suppress the firearm and denied Purcell’s request to suppress the marijuana.
In reaching its conclusion, the district court rejected the government’s assertion
The district court also rejected the government’s assertion that Crist had either actual or apparent authority to consent to the search of the bag that held the firearm. First, the district court concluded that Crist did not have actual authority to consent to the search of either bag: “Ms. Crist gave no testimony thаt would suggest she enjoyed any mutual use, access, or control of the duffel bag or backpack or the items within it, and the Government has provided no evidence to refute this claim.” J.A. at 28 (Mem. Op. & Order at 16). Second, according to the district court, there was apparent authority for the officers to search the first bag because at the time of the search of the first bag “there was no evidence offered to suggest reason to doubt the accuracy or truthfulness of her response that the duffel bag was hers.” J.A. at 31 (Mem. Op. & Order at 19). In contrast, the district court found that Crist’s apparent authority was “extinguished with the search of that first bag” after the officers found it was filled with men’s clothing, leaving Crist with no apparent authority to consent to the search of the second bag. J.A. at 32 (Mem. Op. & Order at 20).
On April 3, 2007, the government filed a motion for rеconsideration, asking the district court to use United States v. Atchley,
On April 20, 2007, the government filed an interlocutory appeal challenging the district court’s suppression of the firearm. We have authority to hear this case under 18 U.S.C. § 3731, authorizing the court of appeals to hear interlocutory appeals brought by the United States following a district court’s suppression of evidence that “is a substantial proof of a fact material in the proceeding.” 18 U.S.C. § 3731.
II. ANALYSIS
“In assessing a challenge to the district court’s ruling on a motion to suppress, we review the district court’s factual findings for clear error, and its legal conclusions de novo.” United States v. Waller,
A. Exigent Circumstances
The government claims that the warrantless search that led to the discovery of the firearm was justified by exigent circumstances. Although the Fourth Amendment makes a warrant or obtaining consent a prerequisite for a legal search, “ ‘[t]he need to protect or preserve life or avoid serious injury is justification for what would be otherwise illegal absent an exigency or emergency.’ ” Id. (quoting Wayne v. United States,
In order to establish the applicability of this exception to the Fourth Amendment’s requirements, “[i]t is the government’s burden to prove the existence of exigency.” Atchley,
Methamphetamine labs are rightly regarded as highly dangerous. “Certain of the chemicals used in this process are toxic and inherently dangerous. During the manufacturing process, some of these chemicals, which are highly flammable, present a threat of explosion. These chemicals pose an additional risk should anything go wrong during the manufacturing process. The process produces toxic gases, which pose a serious risk to those who inhale them, and other dangerous byproducts.” United States v. Layne, 324 F.3d 464, 470 (6th Cir.), cert. denied,
In the instant ease, the government claims that the possibility that Purcell was manufacturing methamphetamine in his hotel room created а danger to the agents and hotel guests that justified the warrant-less search of Purcell’s luggage. According to the government, our holding in Atchley compels the conclusion that an exigency existed, but we disagree.
In the case at hand, the only reasons why the officers suspected that there was a methamphetamine lab in Purcell’s room were that he had previously operated methamphetamine labs and they noticed some drug-related items in his hotel room. However, not one agent testified to believing that methamphetamine cooking was ongoing when the agents arrived. This is in sharp contrast to Atchley. In that case, there was a significant amount of evidence indicating that the dangerous manufacture of methamphetamine was ongoing: “Officer Engle stated that he smelled a chemical which he associated with mеthamphetamine manufacturing. When the officers entered, they observed in plain view two large glass jars appearing to contain a solvent, a large bottle of gas line antifreeze, rubbing alcohol, and a police radio scanner.” Atchley,
In Purcell’s case, there was no evidence to suggest that methamphetamine manufacture was ongoing, thus there was no exigency to justify searching Purcell’s luggage. In the absence of an exigency, Atchley simply does not control this case. Had there been evidence of an ongoing methamphetamine lab, Atchley would have entitled the agents to search small containers, such as small pieces of luggage, even though an operational laboratory could not have fit in Purcell’s baggage. See id. at 846 (“The district court found that although Cobb and Engle’s search of the refrigerator, ice chest, ammunition can, and drawer was not justified as part of the protective sweep, it was nonetheless lawful because the items that were in plain view gave the officers probable cause to suspect that the motel room served as a methamphetamine laboratory.”). In this case, however, the predicate that would justify the search of small places such as luggage — evidence of a methamphetaminе lab that creates an exigency — was simply not present.
Furthermore, evidence of a methamphetamine laboratory by itself is not always sufficient to create an exigency. Id. at 851 n. 6 (“We do not intend to say that there should be a per se rule that whenever evidence of a methamphetamine laboratory is apparent, there is always exigency.”). In this case, however, not only was there no evidence of an operating methamphetamine laboratory, but also the government’s claims of exigency appear to be only a post hoc justification for the warrantless search because the agents searching Purcell’s room did not seem particularly concerned for their own safety or the safety of other hotel guests after they had conducted their sweep of Purcell’s room. If the officers were truly concerned about
B. Consent
The government’s only other argument is that Crist’s consent justified the warrantless search of Purcell’s luggage. In order to consent to a search, the person purporting to consent must possess either actual or apparent authority over the item or place to be searched. United States v. Caldwell,
Purcell did not and was not entitled to bring an interlocutory appeal challenging the district сourt’s denial of his motion to suppress the marijuana. United States v. Shameizadeh,
1. Actual Authority
Actual authority in third-party consent cases “rests ... on mutual use of the property by persons generally having joint access or control for most purposes, so that it is reasonable to recognize that any of the co-inhabitants has the right to permit the inspection in his own right and that the others have assumed the risk that one of them number might permit the [property] to be sеarched.” United States v. Matlock,
2. Apparent Authority
“We have held that even where third-party consent comes from an individual without actual authority over the property searched, there is nо Fourth Amendment violation if the police conducted the search in good faith reliance on the third-party’s apparent authority to authorize the search through her consent.” Morgan,
In the сase at hand, when the agents began their search of the luggage in the hotel room, they had a good-faith basis to believe that Crist had authority to consent. Crist asserted that the duffel bag that yielded the marijuana was hers, and her purse was sitting on top of the duffel bag. Crist’s statements created apparent authority for the officers, and their search of the duffel bag was justified because they acted in good-faith reliance upon Crist’s assertions.
Even if the officers’ search of the duffel bag was justified by Crist’s apparent authority, apparent authority cannot exist if there is ambiguity as to the asserted authority and the searching officers do not take steps to resolve the ambiguity. “The government cannоt establish that its agents reasonably relied upon a third party’s apparent authority if agents, faced with an ambiguous situation, nevertheless proceed without making further inquiry. If the agents do not learn enough, if the circumstances make it unclear whether the property about to be searched is subject to mutual use by the person giving consent,
Before the officers began their search, the situation was relatively unambiguous — Crist claimed the duffel bag was hers, and the officers had no reason to doubt that. However, once the officers found that the first bag contained men’s clothing and none of Crist’s personal effects, ambiguity clouded Crist’s authority to consent to the search of the backpack.
Once ambiguity erases any apparent authority, it is not difficult for the searching officers to reestablish the would-be-consenter’s authority. The options for searching officers are simple: either they may get a warrant, or they may simply ask the would-be-consenter whether he or she possesses the authority to consent to the search of the other items that the officers wish to explore. See Waller,
The government attempts to argue that even if Crist’s initial assertions of control over the bags are not enough to sustain her apparent authority after the discovery of the men’s clothing, the fact that Crist was in an intimate relationship with Purcell provided another basis for her apparent authority. Being in an intimate relationship, however, does not endow a would-be-consenter with any additional sheen of apparent authority that would survive the discovery of evidence that contradicts the consenter’s asserted authority. See Morgan,
Thus, we conclude that the discovery of the men’s clothing in the duffle bag that Crist claimed was hers created ambiguity sufficient to erase her apparent authority and necessitated that the officers reestablish Crist’s apparent authority. Because the officers continued their search without reestablishing Crist’s apparent authority, the firearm was discovered as part of an illegal search, and the district court did not err when it suppressed the firearm.
III. CONCLUSION
For the forеgoing reasons, we conclude that exigent circumstances did not justify the search of the hotel room and that Crist did not have apparent authority to consent to the search of the second bag. Accordingly, the district court did not err when it suppressed the firearm, and we AFFIRM the district court’s partial grant of the motion to suppress.
Notes
. The U.S. Marshal Service runs SOFAST, which employs members of various state and federal law-enforcement agencies.
. The indictment also included a count seeking forfeiture of the firearm.
. The dissent mischaracterizes our opinion as requiring that police possess “positive knowledge” of joint access and control before a search is permissible. Dissenting Op. at 968. Our holding that the search of the first bag was reasonable refutes the dissent’s mistaken interpretation. Positive knowledge is simply not required; Crist's uncontradicted statements established appаrent authority that dissipated only when the officers discovered evidence that undermined her assertions of authority. We ask only whether "a [person] of reasonable caution” would believe “that the consenting party had authority over the [property],” Rodriguez,
. The dissent raises a hypothetical case that is clearly distinguishable from the one before us today. While there might be a situation where the search of the first bag would have revealed evidence that “confirmed that the couple shared luggage,” Dissenting Op. at 967, such a situation does not exist in this case. The only clothing that the police discovered in the bag was men's clothing, which hardly “confirms” that Crist and Purcell shared luggage.
. The dissent urges this court to create a new default assumption that "itinerant, intimate couples sharing close quarters have joint use of indistinguishable containers within the space they occupy.” Dissenting Op. at 967. Although there are no doubt many couples who do share luggage when they travel, the possible travel habits of some is hardly a sound basis for an unprecedented expansion of police authority.
Concurrence Opinion
concurring in part and dissenting in part.
The question at hand is whether the officers’ search of the backpack was “[ jreasonable.” U.S. Const, amend. IV. In answering that question, we know (1) that searches based solely upon consent are reasonable, Schneckloth v. Bustamonte,
The officers reasonably relied on Crist’s consent to search the backpack for several reasons. Crist, to start, had unquestioned authority over the hotel room: She rented the room in her name; she opened the door to the officers; and her personal effects were in the room. No one thus contests Crist’s authority to permit the officers to enter the hotel room and to search it.
Once Crist permitted the officers to enter the hotel room, the only spaces not already in plain view — -and therefore potentially covered by her further consent to search the room — would have been the closet, the bathroom, the dresser and the luggage. Crist’s consent to seаrch the room necessarily would seem to cover the closet, the bathroom and the dresser. And if it covered these areas, why wouldn’t it cover the luggage of this non-platonic couple — particularly after what Crist told the officers and after what the officers saw? Crist told the officers that she and Purcell were in an intimate relationship and that they had stayed together in the hotel room for several days. And she confirmed that the first bag the officers opened was her
But there is more. Crist authorized a targeted search, and she also knew the general contents of the two bags she gave the officers permission to search. After allowing a protective sweep of the hotel room, Crist specifically consented to the officers’ search for a “firearm” when they asked if there was “anything in the room that could hurt” them. JA 84. She “direct[ed] [the officers] to look in certain bags because she believed that was where the gun” might be, JA 76, which itself confirmed mutual access to the bags. And when the officers found orange peels in a bag of marijuana in the first duffel bag, Crist told them that the orange peels “help[ ] keep [the marijuana] fresh,” JA 88, further suggesting mutual access to the bag. An individual’s “knowledge of the contents” of a searched space bolsters the reasonableness of an officer’s reliance on that individual’s authority to consent to the search. United States v. Grayer,
Most strikingly, however, Purcell was not an everyday traveler; he was a fugitive. As the officers well knew in arresting Purcell before they entered the hotel room, he was a prison escapee, a member of a group that generally travels lightly and that is more likely to rely on the generosity of others than on its own possessions in getting by from day to day. What then was unreasonable about believing that Crist had authority to consent to the search оf the luggage when she had rented the room, knew the contents of both bags that were searched and had stayed there for several days — and not just with any companion but with a fugitive companion?
One might wonder, indeed, whether fugitives have any legitimate expectation of privacy in their belongings. Individuals released from prison on parole, with the government’s consent, have substantially diminished privacy rights, making reasonable searches unaccompanied by a warrant and without individualized suspicion. See Samson v. California,
But we need not climb that wall now. Purcell’s known status as a fugitive at a minimum contributed to the reasonableness of the officers’ judgment that Crist had authority to consent to the search of the luggage. The officers could reasonably infer that Purcell did not bring the duffel bag and backpack with him when he escaped from prison. And while it is possible that he purchased the bags after his escape, that is not the question; the issue is whether an officer could reasonably conclude that an individual living on the lam was sharing luggage with an intimate trav
United States v. Waller,
The presence of male clothing in one bag also did not invalidate the search. Crist told the officers, it is well to remember, that the first container searched was “her bag.” JA 94. If the officers perceived Crist’s asserted authority over the bag as truthful, as they reasonably could have, then the presence of Purcell’s clothes confirmed that the couple shared luggage. And if Crist was merely confused about which bag contained her possessions, that confusion would buttress a reasonable belief that no clear boundaries existed between the possessions of the pair, which is hardly an improbable scenario when it comes to a traveling couple. Why the varied contents of one bag, which plainly included jointly used items (marijuana), must be viewed to undermine rather than reinforce the inference of mutual use escapes me. It is no more unusual for a fugitive to keep his clothes in a companion’s luggage than it is unusual for a fugitive to stay in a hotel rented in a companion’s name. The circumstances made it a virtual certainty that some male clothes would be in the luggage, indeed perhaps even a male, prison-issue, orange jump suit. There is nothing surprising (or authority diminishing) about finding Purcell’s clothes in a bag that Crist owned and understandably shared with her fugitive companion.
It is true that “[bjeing in an intimate relationship ... does not endow a would-be-consenter with any additional sheen of apparent authority that would survive the discovery of evidence that contradicts the consenter’s asserted authority.” Maj. Op. at 964 (emphasis added). But that is beside the point. The intimate relationship helps to explain the presence of male clothing in Crist’s bag and therefore shows that nothing “contradict[edj” Crist’s authority to permit inspection of the room’s cоntainers. If the officers started with the reasonable premise that itinerant, intimate couples sharing close quarters have joint use of indistinguishable containers within the space they occupy (especially when one of the pair is a fugitive), their discovery of male clothing did more to reaffirm that premise than to refute it. The question after all is not whether the officers were certain that Crist exercised “joint access or control for most purposes,” United States v. Matlock,