dissenting.
[¶ 29] I respectfully dissent.
[¶ 30] I disagree with the majority’s conclusion that the evidence obtained from the search of Daniels’ purse should have been suppressed. Although the cited cases as presented in the majority opinion appear to support the majority’s conclusion, a closer examination of those cases and other Fourth Amendment jurisprudence reveals a different result is necessary.
[¶ 31] The majority correctly concludes the scope of a warrantless search incident to arrest can be different from the scope of a search conducted after law enforcement obtains consent. See People v. Williams, 114 Cal.App.3d 67, 72, 170 Cal.Rptr. 433 (1980) (“A voluntary consent to search creates a separate and independent exception to the warrant requirement and justifies a warrantless search of all areas covered by the consent over which defendant had authority.”); State v. Frank, 650 N.W.2d 213, 217 (Minn.Ct.App.2002) (“The automobile exception and the consent exception to the warrant requirement are separate and distinct doctrines.”). On the basis of the foregoing caselaw, I agree Tognotti is not necessarily controlling in this case, because that case relies on the search incident to arrest exception to the Fourth Amendment’s warrant requirement. See State v. Tognotti, 2003 ND 99, 663 N.W.2d 642. Nevertheless, a thorough review of Fourth Amendment caselaw clearly demonstrates that under the specific facts of this case, the search of Daniels’ purse was proper because she gave law enforcement her implied consent to perform the search.
[¶ 32] The facts in this case are undisputed. The deputy obtained consent from the driver to search the vehicle. Nevertheless, the deputy did not get permission from Daniels to search her belongings. The record, however, also shows Daniels was present when the driver consented to the search and was aware the deputy was going to search the vehicle.
[¶ 33] The majority claims, at ¶ 14, that courts in other jurisdictions have concluded that a driver’s consent to a warrantless search was not a valid consent to search a passenger’s personal property found in the vehicle. Each of the cases cited by the majority differs materially from the facts of this case in which Daniels, the passenger, was present, knew the driver had given consent to the search of the vehicle, and did not object to the search of her purse which was in the vehicle. For example, the majority, at ¶¶ 14-15, relies heavily on People v. James, 163 Ill.2d 302, 206 Ill.Dec. 190, 645 N.E.2d 195 (1994), to support its conclusion the search in this case was improper. The facts of James, however, differ significantly from this case because the passenger in James did not know the driver had given consent to search the vehicle. See James, 206 Ill.Dec. 190, 645 N.E.2d at 203. The other cases cited by the majority are likewise materially different. See, e.g., State v. Friedel, 714 N.E.2d 1231, 1239 (Ind.Ct.App.1999) (“The record is unclear as to whether [the passenger] heard [the driver] *679give the officers consent to search his vehicle and the trial court made no factual finding regarding this matter.”); State v. Frank, 650 N.W.2d 213, 215 (Minn.Ct.App.2002) (“Out of appellant’s hearing, Officer Engum asked S.J. for permission to search the vehicle.... ”); State v. Caniglia, 1 Neb.App. 730, 510 N.W.2d 372, 374 (1993) (“While Officer Farrow sought the driver’s consent and proceeded to search the van, Officer Muller questioned Caniglia.”). Other courts have similarly concluded that when an individual is present but not within hearing and is not aware that someone else has given consent to a search, that individual’s consent may not be implied by the individual’s silence or failure to object. See United States v. Jaras, 86 F.3d 383, 390-91 (5th Cir.1996) (“Jaras was not present when Salazar gave his consent to search the vehicle, and there is no evidence in the record that Jaras even heard Officer Mitchell ask Salazar for permission to search the ear. We do not think that consent may reasonably be implied from Jaras’s silence or failure to object because Officer Mitchell did not expressly or impliedly ask for his consent to search.”).
[¶ 34] On the other hand, the Delaware Supreme Court has established that when an individual with superior possessory rights is present, the non-assertion of those ownership rights may be viewed as impliedly consensual. Ledda v. State, 564 A.2d 1125, 1128-29 (Del.1989). The Delaware Court went further in a subsequent case:
[Wjhen a person with equal or greater authority to consent to a search is present, if a search is authorized by a third party, there is a duty to object. Ledda v. State, 564 A.2d at 1128-29. In this case, even though Scott was present, he failed to countermand Jenkins’ consent at any time during the search. Jenkins had the authority to consent to the search of the apartment, in the absence of any objection by Scott. Ledda v. State, 564 A.2d at 1128-29. Assuming arguendo that Scott’s authority to consent to a search was equal to Jenkins’ authority, we hold that Scott’s failure to object constituted his implied consent to the search authorized by Jenkins. Id.
Scott v. State, 672 A.2d 550, 553 (Del.1996).
[¶ 35] Unlike in the cases cited by the majority in which law enforcement asked for consent outside of the passenger’s hearing or without the passenger’s knowledge, Daniels, in this case, was present and knew of the driver’s consent but failed to object to a search of her purse. Daniels had greater authority as to her purse in the vehicle. She heard the driver consent to a search of the vehicle, and she did not object. Under the clear holdings in Delaware validating searches analogous to the one in this case, and because the majority has failed to cite any case to the contrary, I would affirm the district court’s decision to deny Daniels’ motion to suppress.
[¶ 36] DALE V. SANDSTROM, J.