dissenting.
The two opinions which comprise today’s judgment reversing the district court’s order suppressing the evidence as to Viera greatly extend the law of third party consent to search. Because I believe that our fourth amendment protections should not be further eroded, even when the object is the despicable cocaine trade, I respectfully dissent from the judgment of the court.
It is now well established that the consent which legitimizes a warrantless search can, under certain circumstances, authorize a search that is effective as to a third party. However, in articulating the legal principle that “the consent of one who possesses common authority over premises or effects is valid as against the absent, non-consenting person with whom that authority is shared,” United States v. Matlock, 415 U.S. 164, 170, 94 S.Ct. 988, 993, 39 L.Ed.2d 242 (1974), the Court included two limitations, i.e., there must be both “common authority over premises or effects” and an “absent, nonconsenting person.”
The rationale for permitting the consent to search by one person to apply to others “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 their number might permit the common area to be searched.” Id. at 171 n. 7, 94 S.Ct. at 993 n. 7.
The assumption of this risk is illustrated by the facts in Matlock. Mrs. Graff, who gave the arresting officers consent to search the house, including the bedroom where the evidence against Matlock was found, jointly occupied that bedroom with Matlock. Mrs. Graff was not a casual visitor and had lived with Matlock elsewhere before they moved to her parents’ house, which is where they were living at the time of the search. Id. at 166-68, 94 S.Ct. at 990-92. Thus it was reasonable to conclude that Matlock had relinquished his expectation of privacy and thereby surrendered to her authority to consent to the search. Put in the perspective of the facts before us, she was not merely a friend sharing the ride and driving chores en route to a mutual destination.
My colleagues overlook that “joint access or control” is relevant because a third party consent is premised on the earlier surrender of one’s privacy interest in the area sought to be searched. They both assume that by virtue of Viera’s relinquishment of the driving duty to Morales, Viera gave Morales access to or control over the entire vehicle. There is no basis for such an assumption.
Both Judges Hutchinson and Seitz appear to accept the general principle of United States v. Block, 590 F.2d 535 (4th Cir.1978), which protects one’s privacy in hidden or enclosed areas, although both believe it is inapplicable here. In Block, the court held that a mother could not consent to the search of her son’s footlocker even though it had been left by him in her home. The Block court explained that third party consent validly given to search a certain area “cannot be thought automatically to extend to the interiors of every discrete enclosed space capable of search within the area.” Id. at 541.
This principle was referred to by two Justices in United States v. Karo, 468 U.S. 705, 104 S.Ct. 3296, 82 L.Ed.2d 530 (1984), where Justice O’Connor, joined by then-Justice Rehnquist, stated that “[a] homeowner’s consent to a search of the home may not be effective consent to a search of a closed object inside the home. Consent to search a container or a place is effective only when given by one with ‘common authority over or other sufficient relationship *404to the premises or effects sought to be inspected.’ ” Id. at 725, 104 S.Ct. at 3308 (O’Connor, J., concurring in part and concurring in the judgment), quoting Matlock, 415 U.S. at 171, 94 S.Ct. at 993 (emphasis added).
The basis of the enclosed compartment doctrine is that the owner has retained a discrete and unrelinquished expectation of privacy. See Block, 590 F.2d at 541 n. 8. In this case, the district court made a fact finding that the area behind the back seat of the car rented by Viera where the cocaine was secreted was “enclosed and hidden.” United States v. Morales, 676 F.Supp. 560, 566 (D.Del.1987). Although Judge Hutchinson’s opinion suggests some discomfort with that finding, see Hutchinson, J., at 400, I do not understand him to conclude that that finding was clearly erroneous.
Judge Seitz takes a different position, stating that “the notion of discrete and secret compartments within a house, as was the case in Block ... has no application in the automotive context absent a showing of special circumstances,” Seitz, J., at 402. The rationale for a lesser privacy interest in an automobile, its “little capacity for escaping public scrutiny,” Cardwell v. Lewis, 417 U.S. 583, 590, 94 S.Ct. 2464, 2469, 41 L.Ed.2d 325 (1974) (plurality opinion), is not applicable to enclosed compartments within an automobile. Judge Seitz believes, however, that because Viera took no “special step to deny Morales access to part of the vehicle,” Seitz, J., at 402, Viera relinquished total control to Morales. That reasoning would apply equally to items secreted behind or under a secret trap door in a house. I do not understand the enclosed area doctrine to be limited to the technicality of a lock and key, however fragile, which would indeed put us into the “metaphysical subtleties” Judge Seitz decries.
In effect, both of my colleagues reach the conclusion that as a matter of law Morales had the right to give a valid third party consent from the fact that Viera permitted Morales to drive. Had Viera been absent, I would agree that relinquishment of possession to another would evidence the type of abandonment of one’s privacy interest that authorizes the driver to consent to search the entire automobile, including the trunk and the hidden area behind the back seat. One who surrenders possession of a car must assume that the driver may need to have access to the trunk in the event of a flat tire, under the hood in the event of engine trouble, or to the glove compartment, the area under the seats, and other parts of the vehicle in the event of unforeseen complications.
Here, however, Viera did not absent himself, and my colleagues inexplicably ignore the significance of that second Matlock factor. In Matlock, the Supreme Court specifically noted that the case involved admitting the fruits of the search “against the absent, nonconsenting person,” Matlock, 415 U.S. at 170, 94 S.Ct. at 993 (emphasis added). When the owner or lessee of the vehicle remains in the vehicle while the companion drives, it is unrealistic to assume that the driver has been given the same access to or control over all parts of the vehicle that s/he would have when the owner/lessee is absent. If Morales had a flat tire or needed a flashlight, Viera was there to search the trunk or glove compartment for the needed item and could have restrained Morales from looking further than Viera intended. Cf. United States v. Anderson, 859 F.2d 1171 (3d Cir.1988) (driver’s consent to search trunk valid as to passenger with no possessory interest).
The authority of a third party to consent to the search must be inferred from the circumstances, and has not, until now, been assumed as a matter of law. Indeed, the consent as a matter of law on which my colleagues’ opinions are premised is inconsistent with the Supreme Court’s holdings that the government bears the burden of proving valid consent, Matlock, 415 U.S. at 177-78 n. 14, 94 S.Ct. at 996 n. 14; Bumper v. North Carolina, 391 U.S. 543, 548, 88 S.Ct. 1788, 1791, 20 L.Ed.2d 797 (1968). No such proof was offered in this case.
Both of my colleagues suggest Viera’s “silence” during the search reinforces their positions. Judge Seitz states that “Viera *405did not complain nor did he seek to prevent the search based on his rental interest,” Seitz, J., at 402, thereby suggesting that Viera should be viewed as consenting to the search itself. Even if Viera were silent, that can hardly be equated with consent. In the circumstances of this case, it is difficult to conclude that Viera waived his Fourth Amendment rights when he was not told what they were. In any event, that would more appropriately be an issue on which the district court should make a fact finding.
Judge Hutchinson, on the other hand, states that Viera's silence “is material in assessing Morales’ authority,” Hutchinson, J., at 402, apparently looking to the scope of Morales’ authority to consent. However, Morales gave oral and written consent to Corporal Durnan’s search when he was in the front seat of the corporal’s patrol car while Viera was outside. In fact, there is no evidence that Viera was made aware that Morales had consented and that the search was being conducted because of the consent of Morales rather than on the initiative of the searching officer. Therefore, I see no basis to assume that Viera’s silence was an implied grant of authority to Morales to consent to the search. As I view the record and the district court’s findings, the government has not borne its burden of demonstrating valid consent from Viera’s presumed silence. For that reason, the cases cited in Judge Hutchinson’s opinion where intrusive automobile searches were upheld against the consenting party, United States v. Espinosa, 782 F.2d 888 (10th Cir.1986); United States v. Lopez, 777 F.2d 543 (10th Cir.1985); United States v. Diaz-Albertini, 772 F.2d 654 (10th Cir.1985), cert. denied, — U.S.-, 108 S.Ct. 82, 98 L.Ed.2d 45 (1987), are inapplicable.
Because I conclude that there was no showing that Morales had actual authority to consent to the search, I must reach the government’s argument that he had apparent authority to give that consent. Assuming arguendo that the government may benefit from a police officer’s belief, although mistaken, in a third party’s apparent authority to consent, the government’s reliance on that authority must be reasonable. See Riley v. Gray, 674 F.2d 522, 528-29 (6th Cir.), cert. denied, 459 U.S. 948, 103 S.Ct. 266, 74 L.Ed.2d 207 (1982). The district court found that Corporal Dur-nan “did not have a reasonable good faith belief in the validity of Morales’ consent” because Corporal Durnan had notice that a Mr. Viera, not the driver, was the lessee of the car. Morales, 676 F.Supp. at 567. Corporal Durnan had a conversation with and questioned the passenger (Viera) as to his travel plans but did not ask him to identify himself before the search. Under these circumstances, I believe we could not hold clearly erroneous the district court’s findings that Corporal Durnan could have discovered that the car’s lessee was present without danger to himself or the investigation and that Corporal Durnan did not have a reasonable good faith belief in Morales’ authority to consent.
Accordingly, I would affirm the district court’s order suppressing the evidence as to Viera.