concurring in part and dissenting in part.
I concur with the majority opinion except for Part III. The problem with Part III is that it puts a premium on ignorance. Under III, as long as police officers do not know whose property they are searching, they can search at will. Consequently, I respectfully dissent from Part III.
The opinion creates the wrong incentive. As one leading authority writes, “sometimes the facts known by the police cry out for further inquiry, and when this is the case it is not reasonable for the police to proceed on the theory that ‘ignorance is bliss.’ ” Wayne R. LaFave, Search and Seizure § 8.3(g) at 267 (2d ed. 1987); see also United States v. Gonzalez Athehorta, 729 F.Supp. 248, 257 (E.D.N.Y.1990) (finding New York State Police investigator “opted to remain ignorant” rather than ask questions to find out status of woman encountered in apartment to determine if she could consent to warrantless search). This is such a case.
In the companion case, State v. Hoyer, “the preferred procedure for law-enforcement officers seeking consent to search one of several pieces of luggage in a car with more than one occupant is *311for the officers to determine which occupant owns each item of luggage, so that the officers’ reliance on consent to search may be justifiable.” 133 N.J. 315, 322, 627 A.2d 1074, 1077 (1993). Having recognized the correct procedure in Hoyer, the majority, however, removes the incentive for law-enforcement officers to follow it in the present case.
The majority states correctly that the validity of the search depends on whether Trooper Trifari had a reasonable basis for believing that Green had the authority to consent to the search of the blue gym bag. Ante at 306, 627 A.2d at 1069. Specifically, the fact-sensitive determination accompanying an application of the apparent authority rule shall “ ‘be judged against an objective standard: would the facts available to the officer at the moment * * * “warrant a [person] of reasonable caution in the belief” that the consenting party had authority [to consent to a search of luggage in the trunk of a car]?” Illinois v. Rodriguez, 497 U.S. 177, 188, 110 S.Ct. 2793, 2801, 111 L.Ed.2d 148, 161 (1990) (quoting Terry v. Ohio, 392 U.S. 1, 21-22, 88 S.Ct. 1868, 1880, 20 L.Ed.2d 889, 906 (1968)). The facts known to Trooper Trifari would have left a reasonable person in doubt about Green’s authority to consent to search both bags. Ibid.
Before the search, Trooper Trifari found documents in the glove compartment, showing that Maristany and Green were driving a car rented by one Bernadette Harvey, who was not present in the ear. Thus, the officers knew, or should have known, that Green was not the owner and that Green’s authority to consent to search the car’s contents was “questionable.” United States v. Padron, 657 F.Supp. 840, 847 (D.Del.1987), aff'd sub nom. United States v. Rubio, 857 F.2d 1466 (3d Cir.), cert. denied, 488 U.S. 974, 109 S.Ct. 512, 102 L.Ed.2d 547 (1988).
Shortly after the stop, Trooper Trifari ordered Green to walk to the rear of the ear. He asked Green where he and Maristany had started their trip. Trooper Trifari left Green at the rear of the car with Trooper Colella and approached Maristany, who was still sitting in the passenger seat. Trifari ordered Maristany to sit on the hood of the car, facing forward, under Colella’s observation. *312Returning to the rear of the ear, Trifari asked Green to consent to a search of the car.
Significantly, Maristany was too far away to hear this exchange. As Trooper Colella testified, “Trooper Trifari then went to the back of the car and got a consent to search form out and that took place, you know, they had a conversation. How that went about, I really don’t know, because I was up front [with Maristany] * * Nothing indicates that Maristany was in any better position than Colella to comprehend that Green had consented to the search. Trooper Trifari could not have believed that Maristany, by remaining quietly seated on the hood of the car facing forward under the watchful eye of Trooper Colella, had impliedly consented to the search of the bags.
Hence, the majority’s emphasis on Maristany’s failure to claim the locker bag “either at the time of the search, at the suppression hearing, or at trial,” ante at 305, 627 A.2d at 1069, is misplaced. First, Maristany, who was separated from Green and could not hear or see what was occurring at the trunk, did not have an opportunity to claim ownership of the locker bag. Second, Maristany’s failure to claim ownership at the suppression hearing or at trial is irrelevant. As the majority recognizes, ante at 305, 627 A.2d at 1068, the apparent-authority rule requires consideration of the reasonableness of Trifari’s belief that Green had authority to consent at the time when search was made. See Rodriguez, supra, 497 U.S. at 188, 110 S.Ct. at 2801, 111 L.Ed.2d at 161. Maristany’s subsequent refusal to claim the bag is irrelevant to the determination of the validity of the consent allegedly made at the time of the search.
Before opening the trunk, Trooper Trifari asked Green if any luggage was in the trunk. Green responded that the trunk contained a brown suitcase and a blue canvas bag. The notion that each traveler would have a piece of luggage is not surprising. Trooper Trifari should not have concluded, without having solicited contrary information, that one man owned both bags and the other owned neither bag. See, e.g., United States v. Poole, 307 F.Supp. 1185, 1190 (E.D.La.1969) (stating that fact guest was *313present at late hour and bag searched was overnight bag should have suggested to reasonable mind possibility that bag belonged to guest rather than consenting tenant). Indeed, as the majority states,- “there was nothing to alert Trooper Trifari that both, none, or only one of the bags belonged to Green.” Ante at 307, 627 A.2d at 1070. The situation was ambiguous. It called for further inquiry.
Trooper Trifari did not have to hurry because of fear for his safety. Prudently, he had called for back-up assistance. He “had ample opportunity to engage in further questioning without endangering [himself and Trooper Colella] or their investigation.” Padron, supra, 657 F.Supp. at 847. He should have followed his question to Green about the contents of the trunk with the next logical question: Who owns the bags?
In Ledda v. State, 564 A.2d 1125 (Del.1989), a Delaware State Trooper obtained the consent of a driver of a ear to search the vehicle. The driver signed the consent form while seated in the trooper’s cruiser, while the owner remained in the stopped car. The trooper did not request the owner’s consent to search the ear, and the owner did not object to it. Id. at 1127. The trooper ultimately searched the trunk and its contents. Before that search, however, the trooper did not establish “ownership of the contents of the suitcases” in the trunk. Ibid. The Delaware Supreme Court validated the search of the car, concluding that the driver had the authority to consent to that search in the absence of an objection by the car’s owner. In validating the search of the suitcases, the Court relied on the evidence of probable cause that arose from the discovery of a machete on top of the suitcases and of marijuana in the glove compartment. Although the Court validated that search, it found that the driver “lacked the possession and control of his passengers’ suitcases that would have given him the authority to consent to a search of them.” Id. at 1129. In brief, the apparent-authority rule did not justify the search of the suitcases. See United States v. Block, 590 F.2d 535, 541 (4th Cir.1978) (stating that the law’s “enclosed spaces,” including suitcases, are frequently objects of one’s highest privacy expectations, *314and these expectations are heightened when effects such as suitcases are temporarily deposited in public places or placed under control of another).
If I thought that requiring an inquiry about ownership of luggage would expose an officer to personal harm, I would rethink my position. And I would not “engage in [ ] metaphysical subtleties in judging the efficacy of’ a consent to search a car. See Frazier v. Cupp, 394 U.S. 731, 740, 89 S.Ct. 1420, 1425, 22 L.Ed.2d 684, 694 (1969) (rejecting defendant’s argument that because consenter had permission to use only one compartment in bag, he did not have authority to consent to search of entire bag). Here, however, the police could have asked Maristany if he owned the bag without exposing themselves to danger and without delaying their investigation. True, they would have had to ask one more question, but that is a small price to pay for honoring the Constitution.
The majority’s approach will likely “encourage * * * police [officers] to avoid inquiring into the facts of * * * [similar future] situation[s].” Riley v. Gray, 674 F.2d 522, 529 (6th Cir.1982). The State’s burden of proof “cannot be met if [police officers], faced with an ambiguous situation, nevertheless proceed without making further inquiry. If the [officers] do not learn enough, if the circumstances make it unclear whether the property about to be searched is subject [at least] to ‘mutual use’ by the person giving consent,” then the search is unconstitutional. United States v. Whitfield, 939 F.2d 1071, 1075 (D.C.Cir.1991). As a practical matter, the requirement to make further inquiries in an ambiguous situation can be easily met. As a matter of law, the inquiry is constitutionally compelled.
Justice CLIFFORD joins in this opinion.
For affirmance in part; reversal in part; and remandment— Chief Justice WILENTZ and Justices STEIN, HANDLER, O’HERN, and GARIBALDI — 5.
Concurring and dissenting — Justices POLLOCK and CLIFFORD — 2.