dissenting:
The contents of Content’s three containers should have been suppressed as fruits of an unlawful search, notwithstanding the consent given by Cleare for the search of his trunk. Agent Delgado had no reasonable basis to conclude that Cleare’s authority to consent to the search of the trunk included the authority to consent to a search of the containers. Because my colleagues hold otherwise, I respectfully dissent.
Third party consent to search premises and effects is justified where the property in question is used “by persons generally having joint access or control for most purposes, so that it is reasonable to recognize that any of the coinhabitants has the right to permit the inspection in his own right.” United States v. Matlock, 415 U.S. 164, 171 n. 7, 94 S.Ct. 988, 993 n. 7, 39 L.Ed.2d 242 (1974). One who possesses with another common authority over property is said to assume the risk that the other might permit a search of the mutually used property. Frazier v. Cupp, 394 U.S. 731, 740, 89 S.Ct. 1420, 1425, 22 L.Ed.2d 684 (1969). Accordingly, it is proper for police to obtain a search warrant based on incriminating documents seen in plain view in a room of an apartment where a joint tenant of the apartment has given permission to enter. United States v. Cataldo, 433 F.2d 38, 40 (2d Cir.1970), cert, denied, 401 U.S. 977, 91 S.Ct. 1205, 28 L.Ed.2d 326 (1971). Likewise, it is proper for government agents to search the cabinets and freezer of a laboratory on the authority of one who exercises joint control over those areas. United States v. Buettner-Janusch, 646 F.2d 759, 765-67 (2d Cir.), cert, denied, 454 U.S. 830, 102 S.Ct. 126, 70 L.Ed.2d 107 (1981).
On the basis of the foregoing, it seems clear that Cleare maintained joint authority with Content over the use of the trunk. Cleare gave Content permission to store items in the trunk and continued to store items there himself. There was “joint access or control for most purposes,” see Matlock, 415 U.S. at 171 n. 7, 94 S.Ct. at 993 n. 7, and both possessed the common authority that conferred upon each one the power to consent to a search of the trunk. Moreover, it was reasonable for Agent Delgado to conclude that Cleare had authority to give consent, in view of the fact that the trunk obviously was a joint storage area. What was not reasonable was the agent's conclusion that Cleare had authority to consent to a search of the containers that did not belong to him.
A warrantless search of premises or effects on the consent of a third party is lawful only if “the facts available to the officer at the moment [would] ‘warrant a man of reasonable caution in the belief’ that the consenting party had authority over the premises.” Illinois v. Rodriguez, 497 U.S. 177, 110 S.Ct. 2793, 2801, 111 L.Ed.2d 148 (1990) (citation omitted). The burden of proof is on the government in this respect, and that burden is not necessarily met by an assurance from the third party that he has the authority to consent. See id. In any event, Cleare never said that he had the authority to consent to a search of the green travel bag, the blue plastic bag or the brown metal box belonging to Content and found in the jointly used trunk.
Nor was there any other reasonable basis for Agent Delgado to conclude that Cleare had the authority to consent to a search of these containers. The evidence was quite to the contrary. Delgado was well aware that Content had stored property in the trunk; knew that the only key to the trunk was in Content’s possession; never sought nor received specific permission from Cleare to inspect the containers belonging to Content; and excluded Cleare from the room while he conducted the *90search. It was not until the search was completed that Cleare was invited back into the bedroom and asked only to identify his own property out of all the items spread out on the floor. By that time, of course, the incriminating items in the three containers already had been discovered. Cleare had never even seen the blue bag or the metal box before that time, let alone given permission to search them.
We recently held that a landlord who was authorized to enter a tenant’s apartment when necessary to turn off electrical appliances or lights because of an electrical short circuit is not by that token entitled to consent to a search of the apartment itself. United States v. Brown, 961 F.2d 1039 (2d Cir.1992). It seems to me that this determination compels the conclusion that Cleare’s authority to consent to a search of the trunk did not carry with it the authority to consent to a search of the containers that Content without doubt intended to keep private. It is not sufficient to say that Cleare had a joint interest in the containers simply because they were in the trunk and because Content never specifically told Cleare he could not rummage through them.
I think that my colleagues are wrong to rely so heavily upon Florida v. Jimeno, — U.S.-, 111 S.Ct. 1801, 114 L.Ed.2d 297 (1991). As they note, Jimeno did not address the issue of third party consent. The court did decide in that case that where a driver invites the search of an automobile, saying he has “nothing to hide,” it is reasonable for the officers to believe that the consent extends to a paper bag lying on the passenger side. Police given permission by the driver to search an entire car need not request separate permission to search each container within. Based on Jimeno, my colleagues “agree with the district court that it was reasonable for the agents to consider Cleare’s general consent to the search of the footlocker to include consent to examine the [containers] within the footlocker.” At 88. But that is not the proper inquiry. The inquiry, according to Rodriguez, is whether it was reasonable for the agents to conclude that Cleare had authority to consent to a search of the containers within the footlocker. Because Cleare had no such authority and the officers had no basis for believing that he did, I think that the conduct here crossed the line into a Fourth Amendment violation.