United States v. Purcell

SUTTON, Circuit Judge,

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, 412 U.S. 218, 222, 93 S.Ct. 2041, 36 L.Ed.2d 854 (1973), (2) that each joint user of a container “clearly ha[s] authority to consent to its search” because one user “assume[s] the risk that [the other] would allow someone else to look inside,” Frazier v. Cupp, 394 U.S. 731, 740, 89 S.Ct. 1420, 22 L.Ed.2d 684 (1969), and (3) that officers need not be “correct” that an individual has authority to consent to a search but must only “reasonably believe[ ]” that the individual has common authority over the premises and items to be searched, Illinois v. Rodriguez, 497 U.S. 177, 185, 189, 110 S.Ct. 2793, 111 L.Ed.2d 148 (1990).

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 search 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 *966own. What the officers saw confirmed Crist’s authority to permit the officers to search the two bags or at least confirmed the absence of any exclusivity between Crist’s luggage and Purcell’s. Crist’s possessions were scattered about the room. None of the bags in the hotel room was locked, individually marked or otherwise naturally affiliated with one or the other of them. And no clear arrangement of the containers indicated that some were more private than others. On these facts alone, it would seem reasonable for officers to infer that a couple sharing a bed would share access to unmarked, unlocked and androgynous-looking luggage.

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, 232 Fed. Appx. 446, 449 (6th Cir. Apr.5, 2007).

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 of 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, 547 U.S. 843, 856, 126 S.Ct. 2193, 165 L.Ed.2d 250 (2006). Why reward a fugitive, who necessarily left prison without the government’s consent, by giving him more constitutional privacy than he had before he escaped from prison? See United States v. Roy, 734 F.2d 108, 112 (2d Cir.1984) (holding that a fugitive has no more Fourth Amendment rights than when he was in prison in part because “[a] contrary determination would offer judicial encouragement to the act of escape and would reward an escapee for his illegal conduct”).

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*967eling companion — as indeed turned out to be the case. The officers’ reliance on all of these circumstances in the end turns on precisely the kinds of “factual and practical considerations of everyday life on which reasonable and prudent” officers may act, Brinegar v. United States, 338 U.S. 160, 175, 69 S.Ct. 1302, 93 L.Ed. 1879 (1949), and on this record an officer “of reasonable caution” would be “warrant[ed] ... in the belief’ that this couple shared access to luggage, Rodriguez, 497 U.S. at 188, 110 S.Ct. 2793 (internal quotation marks omitted).

United States v. Waller, 426 F.3d 838 (6th Cir.2005), does not hold (or even say) otherwise. It merely observes that in some circumstances it may become “unclear whether the property about to be searched” — there a suitcase — “is subject to ‘mutual use’ by the person giving consent.” Id. at 846 (internal quotation marks omitted). But the circumstances of Waller’s case are not the circumstances of Purcell’s. Waller was not a fugitive; his suitcase was found in a house he did not occupy; and there was no evidence that any of Waller’s possessions were “mutual[ly] use[d]” by anyone else. Id. at 845-47, 849.

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 containers. 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, 415 U.S. 164, 171 n. 7, 94 S.Ct. 988, 39 L.Ed.2d 242 (1974); it is whether there was enough uncertainty to undermine the officers’ “reasonable ... belief that [she] had authority to consent,” Rodriguez, 497 U.S. at 187, 110 S.Ct. 2793 (internal quotation marks omitted).

*968In United States v. Melgar, 227 F.3d 1038 (7th Cir.2000), the Seventh Circuit faced a similar situation. In upholding the search of a floral purse, it held that apparent authority exists over containers in a jointly occupied living space unless “the police ... have reliable information that the container is not under the authorizer’s control.” Id. at 1041. “[T]he real question for closed container searches,” Judge Wood recognized, “is which way the risk of uncertainty should run.” Id. The court resolved this question by rejecting a comparable rule to the one the majority embraces today — that uncertainty should be resolved by making consent searches “permissible only if the police have positive knowledge that the closed container is also under the authority of the person who originally consented”' — because such a rule “would impose an impossible burden on the police. It would mean that they could never search closed containers within a dwelling (including hotel rooms) without asking the person whose consent is being given ex ante about every item they might encounter.” Id. at 1041-42 (second emphasis added). At least one other circuit has embraced this view. See United States v. Navarro, 169 F.3d 228, 232 (5th Cir.1999) (holding that apparent authority existed where there was no evidence that the consenter “advised that the luggage in the vehicle was not his”). We should do the same here. The majority seeing it differently, I respectfully dissent from this part of its opinion.