dissenting:
I respectfully dissent.
Under the majority decision a police officer desiring to search a purse which he finds in a car may choose to ask the driver for consent, even though he knows the purse belongs to a passenger. I cannot agree the rights protected by the fourth amendment can be eroded by such an unrealistic doctrine of apparent authority. See Stoner v. California (1964), 376 U.S. 483, 488, 11 L. Ed. 2d 856, 860, 84 S. Ct. 889, 892.
In People v. Bolar (1990), 205 Ill. App. 3d 597, 563 N.E.2d 1225, a driver authorized the police to search his vehicle. Before exiting the vehicle the defendant passenger placed a Kentucky Fried Chicken box he had been using into an open paper sack standing on the floorboard at his feet, and left the sack in the vehicle. In reversing the suppression of the sack’s contents, the Third District Appellate Court stated:
“The uncontroverted evidence established that Wallace, the driver and owner of the vehicle, consented to a search of the car and its contents. The sack was open and standing in plain view. Moreover, the defendant did not assert a possessory interest in the sack or its contents. Consequently, we find that he did not have a legitimate expectation of privacy in the sack and thus lacked standing to challenge the search.” Bolar, 205 Ill. App. 3d at 599, 563 N.E.2d at 1227.
Applying Bolar to this case it appears that defendant’s purse was not open. It further appears that defendant was never given the opportunity to assert a possessory interest in the purse, as she did not know the driver had consented to a search of the vehicle. Although a defendant may not have a legitimate expectation of privacy in an open sack which he leaves in another’s car, the same cannot be said of a purse. It is difficult to conceive of any item in which a defendant has a more legitimate expectation of privacy than her purse. The purse here was not abandoned or left in the car for a matter of days, but for only a few minutes, after defendant was ordered out of the vehicle, and before any request to search was made.
When the police removed the five occupants from the vehicle, obtained the consent of the driver to a search, and found the purse on the front seat, it is possible that the purse might have belonged to the driver, or the purse might have belonged to a passenger and the driver had authority to consent to its search. The trial court, however, found that a.reasonable officer would have believed that the purse belonged to the passenger who was sitting where it was found and the driver had no authority to consent to its search.
Just as an officer is not always entitled to accept a person’s invitation to enter a premises, an officer is not always entitled to rely on a person’s consent to search personal property.
“Even when the invitation is accompanied by an explicit assertion that the person lives there, the surrounding circumstances could conceivably be such that a reasonable person would doubt its truth and not act upon it without further inquiry. As with othei: factual determinations bearing upon search and seizure, determination of consent to enter must ‘be judged against an objective standard: would the facts available to the officer at the moment . . . “warrant a man of reasonable caution in the belief” ’ that the consenting party had authority over the premises? Terry v. Ohio [(1968), 392 U.S. 1, 21-22, 20 L. Ed. 2d 889, 906, 88 S. Ct. 1868, 1880]. If not, then warrantless entry without further inquiry is unlawful unless authority actually exists. But if so, the search is valid.” (Illinois v. Rodriguez (1990), 497 U.S. 177, 188-89, 111 L. Ed. 2d 148, 161, 110 S. Ct. 2793, 2801.)
Here the trial court found that a reasonable officer would not have relied upon the driver’s consent but would have inquired further. The trial court’s decision was not contrary to the manifest weight of the evidence.
The apparent authority cases cited by the majority have little relevance to this case. There is no indication the driver and the passenger shared the purse in common here, as the parties shared their bedroom in Matlock. This case is not much like Miller or Harris, where the owner of a vehicle allowed someone else to drive it, and thereby assumed the risk the driver would allow someone to look inside it. Nor, for that matter, is this case much like Rakas v. Illinois (1978), 439 U.S. 128, 58 L. Ed. 2d 387, 99 S. Ct. 421, where a passenger sought to object to a search under the seats of the vehicle and in the glove compartment. This would be a more difficult case, under Bolar and Harris, if the police had asked for the driver’s consent in defendant’s presence, and defendant had remained silent.
I would affirm the order of the circuit court suppressing the evidence.