Attorneys for Appellant
John H. Watson
Batesville, IN
Mark E. Jones
Batesville, IN
Attorneys for Appellee
Jeffrey A. Modisett
Attorney General of Indiana
James A. Garrard
Deputy Attorney General
Indianapolis, IN
IN THE
INDIANA SUPREME COURT
JEWELL K. KRISE,
Appellant (Defendant below),
v.
STATE OF INDIANA,
Appellee (Plaintiff below).
)
) Supreme Court No.
) 16S05-0002-CR-118
)
)
) Court of Appeals
) 16A05-9809-CR-460
)
)
APPEAL FROM THE DECATUR CIRCUIT COURT
The Honorable John A. Westhafer, Judge
Cause No. 16C01-9705-CF-055
ON PETITION TO TRANSFER
May 9, 2001
SULLIVAN, Justice.
Defendant Jewell K. Krise and Charles Tungate lived in the same
house. Tungate consented to a general search of the house, which
ultimately led to the discovery and search of Krise’s purse. We agree with
Krise that the warrantless search of her purse without her consent violated
her Fourth Amendment rights against unreasonable search and seizure.
Background
On May 5, 1997, Officer Howard Ayers and Deputy Sheriff Michael
Woodhull arrived at the home of Defendant Jewell Krise and Charles Tungate
to serve a civil writ of body attachment on Krise.[1] Krise allowed the
officers to enter her house to discuss the validity of the writ.
While inside the home, Officer Ayers noticed a pipe resting on the
base of lamp in the living room. After examining it, he detected the scent
of burnt marijuana. Officer Ayers questioned Krise about the pipe, but she
said that she did not know anything about it. Deputy Darin Lucas then
transported Krise to the Decatur County jail whereupon the officers learned
that the writ was stale.
Officer Ayers questioned Tungate about the pipe. Tungate ordered the
officers out of his house, but the officers did not respond to his request.
Instead, Officer Ayers asked Tungate several times if they could search
the home for drugs.[2] Tungate told the officers to obtain a warrant to
search the home. Tungate nevertheless eventually agreed to the search of
the home. Although Tungate refused to give a written consent, Officer
Robert Ewing recorded on audiotape Tungate’s verbal consent to search. No
search warrant had been issued.
Officer Rick Underhill arrived at the scene to assist in searching
the home. While searching the bathroom, Officer Underhill noticed a purse
lying on top of the commode. Without the consent of either Tungate or
Krise, Officer Underhill opened the purse and found a small leather pouch.
Inside the pouch, he discovered a small wooden case holding marijuana and a
plastic bag containing white powder, later identified as methamphetamine.
Officer Underhill also found Krise’s driver’s license inside the purse.
Krise never consented to the search of her purse.
The State charged Krise with Possession of a Schedule II Controlled
Substance within 1,000 Feet of a Public Park, a Class C felony. [3] Krise
filed a motion to suppress all evidence obtained during the search of her
home. The trial court denied the motion on January 14, 1998. A jury
convicted Krise as charged on June 2, 1998. The trial court sentenced
Krise to the presumptive sentence of four years incarceration, with two
years suspended to probation.
Krise appealed her conviction and the denial of her motion to suppress
all evidence. The Court of Appeals affirmed the trial court’s judgment,
finding that a third-party’s consent to a warrantless search of a home
includes permission to search all containers, and in particular, a purse
located inside the home. See Krise v. State, 718 N.E.2d 1136, 1142 (Ind.
Ct. App. 1999). Judge Friedlander pointed out in dissent that this
decision conflicts with another recent decision of the Court of Appeals.
Id. at 1145 (Friedlander, J. dissenting) (citing State v. Friedel, 714
N.E.2d 1231 (Ind. Ct. App. 1999), transfer not sought).
Discussion
Krise contends that the trial court erred when it denied her motion to
suppress because the warrantless search of her home, which led to the
warrantless search of her purse, violated her Fourth Amendment[4] rights.
The State argues, and the Court of Appeals agreed, that no Fourth Amendment
violation occurred since the police officers obtained a voluntary consent
from Tungate whom the police officers reasonably believed had authority
over the premises. It is important to emphasize that the State argues that
the validity of the search came from Tungate’s authority to consent to the
search of the home, not probable cause. We also point out that the record
contains no court explanation on the denial of the motion to suppress.
The Fourth Amendment protects persons from unreasonable search and
seizure and this protection has been extended to the states through the
Fourteenth Amendment. U.S. Const. amend. IV; Mapp v. Ohio, 367 U.S. 643,
650 (1961). Warrantless searches and seizures inside the home are
presumptively unreasonable. See Payton v. New York, 445 U.S. 573, 586
(1980). When a search is conducted without a warrant, the State has the
burden of proving that an exception to the warrant requirement existed at
the time of the search. See Berry v. State, 704 N.E.2d 462, 465 (Ind.
1998) (citing Brown v. State, 691 N.E.2d 438, 443 (Ind. 1998)). One well-
recognized exception to the warrant requirement is a voluntary and knowing
consent to search. See Schneckloth v. Bustamonte, 412 U.S. 218, 219
(1973); Stallings v. State, 508 N.E.2d 550, 552 (Ind. 1987).
The twists and turns of Fourth Amendment law are often difficult to
negotiate, with variations in fact patterns often determinative of the
outcome of cases involving warrantless searches. Here we perceive four
variables in the facts that require particular attention. First, as
already noted, the warrantless search was made pursuant to consent (rather
than probable cause as in many reported cases). Second, the search was of a
home (rather than a vehicle). Third, the search was of a purse. And
fourth, the person consenting to the search was not the owner of the purse.
The United States Supreme Court has not passed on the
constitutionality of a warrantless search involving this precise array of
variables, but it has decided cases involving some of them. We begin our
analysis with a review of those cases. After extracting what guidance we
can from them, we apply their teaching to the fact pattern we face here.
I
A
Our analysis begins by examining the recent United States Supreme
Court decision, Wyoming v. Houghton, 526 U.S. 295 (1999), in which the
Court upheld a warrantless search of a passenger’s purse based on probable
cause to search an entire automobile. We initially point out that while
both Houghton and this case involve a warrantless search of a purse, the
searches were justified under different exceptions to the warrant
requirement: the search in Houghton was validated by probable cause; the
search in this case was justified by consent. As such, an examination of
the two exceptions is necessary to determine Houghton’s applicability. We
begin with the scope of probable cause and consent searches.
In Houghton, an officer stopped a vehicle for speeding and driving
with a faulty brake light. 526 U.S. at 297. During the stop, the officer
noticed a syringe in the driver’s shirt pocket. Id. at 298. When
questioned about the syringe, the driver admitted that he used it to take
illegal drugs. Id. The officer ordered the driver and two female
passengers out of the car and then conducted a probable cause search of the
car for contraband. Id. During the search, the officer found a purse on
the back seat, searched it, and discovered drug paraphernalia and
methamphetamine. Id. Passenger Houghton admitted the purse belonged to
her. Id. In upholding the search of the passenger’s purse, the United
States Supreme Court found, “When there is probable cause to search for
contraband in a car, it is reasonable for police officers ... to examine
packages and containers without showing of individualized probable cause
for each one.” Id. at 302. The Court refused to distinguish between a
passenger’s belongings and the driver’s belongings even though the
officer’s suspicion of the driver’s criminal conduct was the basis of the
search. Id. at 302-06. The Court reasoned in part that its decision not to
distinguish between containers during a probable cause search of a vehicle
was based upon the scope of warrantless search principles articulated in
United States v. Ross, 456 U.S. 798 (1982). Id. at 302.
Ross had held that where probable cause justified the search of a
lawfully stopped vehicle, it justified the search of every part of the
vehicle and its contents that may conceal the object of the search. 456
U.S. at 825. Ross determined that “[t]he scope of a warrantless search
based on probable cause is no narrower—and no broader—than the scope of a
search authorized by a warrant supported by probable cause.” Id. at 823.
Thus, the Court concluded that the scope of a warrantless search of an
automobile is not defined by the nature of the container, but rather is
defined by the object of the search and the places in which there is
probable cause to believe that it may be found. Id. at 824. For example,
probable cause to search for undocumented illegal aliens would not justify
opening a suitcase. Id.
Because this case involves a search of a purse within a home rather
than a vehicle, it is important to acknowledge that although both Houghton
and Ross involved vehicle searches, they purported to address searches
supported by a warrant of fixed premises in general and closed containers
discovered therein. The Court in Ross stated:
A lawful search of fixed premises generally extends to the
entire area in which the object of the search may be found and is not
limited by the possibility that separate acts of entry or opening may
be required to complete the search. Thus, a warrant that authorizes
an officer to search a home for illegal weapons also provides
authority to open closets, chests, drawers, and containers in which
the weapons might be found. A warrant to open a footlocker to search
for marijuana would also authorize the opening of packages found
inside. ... When a legitimate search is under way, and when its
purpose and its limits have been precisely defined, nice distinctions
between closets, drawers, and containers, in the case of a home, or
between glove compartments, upholstered seats, trunks, and wrapped
packages, in the case of a vehicle, must give way to the interest in
the prompt and efficient completion of the task at hand.
This rule applies to all containers, as indeed we believe it
must.
Id. at 822-23 (emphasis added) (footnotes omitted).[5] See also Houghton,
526 U.S. at 302 (describing a search warrant of a premises owned by a
person not suspected of a crime: “‘The critical element in a reasonable
search is not that the owner of the property is suspected of a crime but
that there is reasonable cause to believe that the specific ‘things’ to be
searched for and seized are located on the property to which entry is
sought.’”) (quoting Zurcher v. Stanford Daily, 436 U.S. 547, 556 (1978)).
From this, we discern that the lawful scope of a search of a vehicle
based on probable cause and the lawful scope of a search of a home based on
a warrant are identical. Both are defined by the object of the search
without placing extra limitations on the opening of containers. Cf. United
States v. Melgar, 227 F.3d 1038, 1042 (7th Cir. 2000) (“Houghton indicates
that the container rule rests on general principles of Fourth Amendment law
that do not depend on the special attributes of automobile searches.”).
But see Houghton, 526 U.S. at 308 (Breyer, J., concurring) (“[T]he rule
applies only to containers found within automobiles. And does not extend to
the search of a person found in that automobile.”).
B
Next, we examine the scope of a consent search. The United States
Supreme Court in Florida v. Jimeno, 500 U.S. 248 (1991), set forth the test
for measuring the scope of a consent search. In that case, an officer
lawfully stopped a vehicle. Id. at 249. The officer asked the driver, not
the two passengers, for permission to search the car. Id. The driver gave
his consent to the general search of the car, but did not limit the search.
Id. The officer discovered a paper bag lying on the floorboard, searched
it and found cocaine. Id. at 250. In upholding the search, the Supreme
Court reasoned that the officer could have reasonably believed that the
driver’s general consent to search his vehicle included the search of a
paper bag discovered on the floor of the vehicle. Id. at 251. The Court
held that the scope of such searches are determined by what a “typical
reasonable person would have understood by the exchange between the officer
and the suspect.” Id. The Court further cited Ross in determining that
the scope of a consent search is generally defined by its express object.
Id.
C
Taken together, Houghton, Ross, and Jimeno appear to indicate that the
scope of a probable cause search of a vehicle, the scope of a warrant
search of a home, and the scope of a consent search are all generally
defined by the object of the search.
However, unlike a probable cause (or warrant) search, the scope of a
consent search is measured by objective reasonableness. Jimeno, 500 U.S.
at 251. Indeed, Jimeno held that while it may be reasonable to conclude
that a suspect’s consent to the search of his automobile included
authorization to search a paper bag on the floor, it would be unreasonable
to conclude that the suspect’s consent authorized the “breaking open of a
locked briefcase within the trunk ... .” Id. at 252. Further, unlike a
probable cause (or warrant) search, a consent search allows for a suspect
to limit or restrict the search as he or she chooses. Id. See also Walter
v. United States, 447 U.S. 649, 657 (1980) (ruling that consent searches
are limited by the terms of authorization).
These principles indicate that the scope of consent is factually
sensitive and does not solely depend on the express object to be searched.
In contrast, probable cause to search a vehicle and a warrant to search a
home authorizes the search of every part of the vehicle or home and closed
containers therein that may conceal the object of the search despite the
suspect’s wishes to place limitations and regardless of the officer’s
belief as to the type of the container to be searched. Ross, 456 U.S. at
825; California v. Acevedo, 500 U.S. 565, 572 (1991).
In addition, we note two more distinctions between the probable cause
exception and the consent exception to the warrant requirement. First, a
search validated by consent carries with it additional legal requirements
that are not imposed for a search justified by probable cause. For
instance, a permissible consensual search requires a voluntary consent, see
Schneckloth v. Bustamonte, 412 U.S. 218, 223 (1973), and in third-party
consent cases, the individual’s authority (actual or apparent) to consent
to the search of a non-consenting party’s property must be established, see
United States v. Matlock, 415 U.S. 164, 171 (1974); Illinois v. Rodriguez,
497 U.S. 177, 188 (1990). A search justified by probable cause, with or
without a warrant, does not implicate any of these factors and therefore is
less restricted.
Second, the policies that justify probable cause searches (and warrant
searches) differ from those supporting consent searches. Searches
validated by probable cause require a reasonable ground to suspect that a
person has committed or is committing a crime or that a place contains
specific items connected with a crime. See Colorado v. Bertine, 479 U.S.
367, 373 (1987) (“‘The standard of probable cause is peculiarly related to
criminal investigations, not routine, non criminal procedures … .’”)
(quoting South Dakota v. Opperman, 428 U.S. 364, 370 n.5 (1976)). The
policies underlying consent searches are entirely different. For example,
in Schneckloth, the Court articulated the policy underlying consent
searches: “[T]he community has a real interest in encouraging consent, for
the resulting search may yield necessary evidence for the solution and
prosecution of crime, evidence that may insure that a wholly innocent
person is not wrongly charged with a criminal offense.” 412 U.S. at 243.
In short, a consent search differs from a probable cause search, the
degree to which depends largely upon the facts presented to the officer
conducting a consent search. Further, a third-party consent search
encompasses one additional requirement, the authority to consent,
indicating that a probable cause search is less restricted. Accordingly,
we find Houghton to be inapplicable to this case.[6]
II
As briefly noted, the present case conflicts with another recent
Indiana opinion, State v. Friedel, 714 N.E.2d 1231 (Ind. Ct. App. 1999),
transfer not sought. Both cases involve a warrantless search of a purse
justified by a third-party’s consent to a general search. In Friedel, the
driver’s consent to the search of his vehicle resulted in the search of a
passenger’s purse containing methamphetamine and marijuana. Id. at 1235.
The Court of Appeals ruled the search invalid, finding that although the
driver consented to the search of his vehicle, he had no actual or apparent
authority to consent to the search of the passenger’s purse. Id. at 1243.
The court rejected the State’s argument, which relied on Jimeno, that the
third-party’s scope of consent to search the car included the search of the
purse. Id. at 1239. Instead, it focused on the driver’s authority to
consent to the search of the passenger’s purse, finding that it was
unreasonable for the officers to believe that the driver had common
authority over the purse because under the facts, it was evident that the
purse belonged to the woman passenger, not the driver. Id. at 1246. The
court also reasoned that “the issue is not whether the purse was within the
scope of the search, but whether the [third-party] had actual or apparent
authority to consent to the search.” Id. at 1239 (emphasis added). In its
analysis, the court also distinguished the Houghton decision on grounds
that the search of the purse in Houghton was supported by probable cause
and not consent. Id. at 1238.
The Court of Appeals panel in this case came to an opposite conclusion
from the Friedel panel. In upholding the search of Krise’s purse, the
court determined the following:
[A]lthough the standard for measuring the scope of a suspect’s consent
under the Fourth Amendment is that of objective reasonableness,
Jimeno, 500 U.S. at 251, the determination of reasonableness [for
scope of consent] pertains to the third person’s authority over the
premises in question and not any particular container within a common
area of such premises. See Brown, 691 N.E.2d at 443.
Krise, 718 N.E.2d at 1142. The court went on to hold that “it was
reasonable for the officers to conclude that Tungate and Krise had mutual
use of and joint access to the bathroom, and thus the purse and items
therein were under Tungate’s and Krise’s common authority.” Id. at 1143
(citing Brown, 691 N.E.2d at 443-44). The court also found that because
Tungate did not place any explicit limitations on the scope of the
officer’s search and did not restrict the search by excluding personal
items belonging to Krise, it was reasonable for the officers to believe
that Tungate’s consent to the home included the search of Krise’s purse.
Id.
To resolve the conflict between Krise and Friedel, we examine the
applicability of the scope of a consent search to third-party consent
cases. [7] As discussed in Part I-B, supra, the scope of a consent search
is measured by objective reasonableness, the express object to be searched,
and the suspect’s imposed limitations. Thus, the scope of a consent search
is factually sensitive and does not solely depend on the express object to
be searched. If we were to apply the scope of consent rules as outlined in
Jimeno to the facts in this case, arguably one could conclude, as the Court
of Appeals did here, that Tungate’s consent to search the jointly-occupied
home included the search of Krise’s purse simply because Tungate did not
limit or restrict the search in any way. Accord Heald v. State, 492 N.E.2d
671, 680 (Ind. 1986) (noting that a defendant’s consent to the search of a
handbag operated as a consent to search items found within the handbag),
reh’g denied. In addition, Tungate gave the officer permission to search
the house for drugs. Since Krise’s purse is a container where contraband
could be found, then the scope of the search would have been proper.
On the other hand, the objective reasonableness standard allows for
the extent of the suspect’s consent to vary depending on the circumstances.
Indeed, the Supreme Court in Jimeno found it unreasonable for an officer
to believe the consent to search a trunk would authorize a search of a
locked briefcase inside the trunk. See Jimeno, 500 U.S. at 251-52. A
locked briefcase is comparable to a purse in that both are closed
containers that often hold personal items. Arguably then, it would have
been unreasonable for the officer to believe that Tungate’s consent to the
general search of the home included the search of a purse that clearly did
not belong to him. Under this approach, application of the scope of
consent rules could have resulted in an unlawful search of Krise’s purse.
We find it significant that Jimeno did not contemplate a third-party’s
authority to consent to a general search, but rather based the scope of
consent analysis on a suspect’s own consent to a general search. More
specifically, in Jimeno, a driver and two passengers occupied the vehicle.
Id. at 249-50. The officer obtained only the driver’s consent to search
the car, and then discovered a folded brown paper bag holding incriminating
evidence on the passenger-side floorboard. Id. The Court did not engage
in a discussion regarding ownership of the paper bag, and left open the
question of whether the search would have been appropriate under third-
party consent principles.
We conclude that the issue is not only whether the purse was within
the scope of the consent search, but also whether the third party had
actual or apparent authority to consent to the search of the purse. See
Friedel, 714 N.E.2d at 1239. Thus, the essential factors in this case are
whether Tungate had the authority to consent to the search of the home,
whether he had authority to permit the search of personal items belonging
to Krise, and whether he consented to the search of Krise’s purse. As
such, we must determine whether Tungate possessed the requisite authority
to consent to the search.
III
It is well established that a third party may consent to the search of
the premises or property of another if actual authority exists.
Establishing actual authority requires a showing that there is a sufficient
relationship, to or “mutual use of the property by[,] persons generally
having joint access or control for most purposes.” Matlock, 415 U.S. at
171 & n.7; see also Caldwell v. State, 583 N.E.2d 122, 125 (Ind. 1991). If
actual authority cannot be shown, then facts demonstrating that the
consenting party had apparent authority to consent could prove a lawful
search. See Rodriguez, 497 U.S. at 188-89. Under the apparent authority
doctrine, a search is lawful if the facts available to the officer at the
time would “‘warrant a man of reasonable caution in the belief’ that the
consenting party had authority over the premises.” Id. (quoting Terry v.
Ohio, 392 U.S. 1, 21-22 (1968)); see also Logan v. State, 729 N.E.2d 125,
130 (Ind. 2000); Canaan v. State, 683 N.E.2d 227, 231-32 (Ind. 1997), cert.
denied, 524 U.S. 906 (1998). The State bears the burden of proving that
the third party possessed the authority to consent. See Rodriguez, 497
U.S. at 181.
A
In considering Tungate’s actual authority to consent to the search of
the home, it is an undisputed fact that Tungate owned and shared the home
with Krise, thus the two had joint access to and mutual use of the home.
As such, Krise assumed the risk that Tungate would permit a search of
common areas in the home. See Matlock, 415 U.S. at 170. Tungate had
actual authority to consent to the search the home.
B
The central question becomes whether the sharing of a home (in
particular, the bathroom) means that common authority exists to consent to
search containers belonging to only one occupant. Put another way, did
Krise assume the risk that by living in the same house as Tungate, he would
permit outsiders to inspect not only the common areas of the home but also
her personal effects? At least two Supreme Court Justices indicate there
is no assumption of risk under these circumstances. As Justice O’Connor
explained:
A privacy interest in a home itself need not be coextensive with a
privacy interest in the contents or movements of everything situated
inside the home. This has been recognized before in connection with
third-party consent to searches. 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 to the premises or effects sought to be
inspected.’
United States v. Karo, 468 U.S. 705 (1984) (O’Connor, J., concurring)
(quoting Matlock, 415 U.S. at 171); United States v. Rodriguez, 888 F.2d
519, 523-25 (7th Cir. 1989) (requiring separate third-party consent to a
general search of a room and consent to search a briefcase located inside
the room); see also United States v. Block, 590 F.2d 535, 541 (4th Cir.
1978) (holding that although the mother had authority to consent to search
general areas of the home, this authority did not extend to the interior of
her son’s footlocker); but see United States v. Melgar, 227 F.3d 1038, 1041
(7th Cir. 2000) (upholding a search of a defendant’s purse where the search
resulted from a third-party’s consent to the search of a rented motel room;
“Generally, consent to search a space includes consent to search containers
within that space where a reasonable officer would construe the consent to
extend to the container.”).
This Court has addressed cases involving third-party consent searches
of a shared home and its contents.[8] However, none of these cases dealt
with a third-party’s authority to consent to search something like a purse,
i.e., a closed container that normally holds highly personal items, located
within the home. [9] As stated in Part II, supra, the Court of Appeals in
State v. Friedel ruled invalid a warrantless search justified by a third-
party’s authority to consent to the search of a purse. 714 N.E.2d at 1240.
The court found unreasonable the officer’s belief that the driver’s
general consent to the search of his car meant that he had authority to
consent to the search of a purse, which by its nature, is not shared by two
or more people. Id. at 1240-41. We agree with this analysis of third-
party authority principles.
Rather than considering a third-party’s authority to consent to the
general search of the home as “all encompassing” to the search of every
container found inside the home, we hold that the inspection of closed
containers that normally hold highly personal items requires the consent of
the owner or a third party who has authority — actual or apparent — to give
consent to the search of the container itself.
In reaching this conclusion, we find that the type of container is of
great importance in reviewing third-party consent search cases. Absent one
of the well-delineated exceptions to the warrant requirement, “[a]
container which can support a reasonable expectation of privacy may not be
searched, even on probable cause, without a warrant.”[10] United States v.
Jacobsen, 466 U.S. 109, 120 n.17 (1984) (citing Ross, 456 U.S. at 809-12);
see also Smith v. Ohio, 494 U.S. 541 (1990) (per curiam); Horton v.
California, 496 U.S. 128, 141 n.11 (1990); United States v. Place, 462 U.S.
696, 701 (1983); Ex parte Jackson, 96 U.S. 727, 733 (1877); Robles v.
State, 510 N.E.2d 660, 664 (Ind. 1987), reh’g denied. An expectation of
privacy gives rise to Fourth Amendment protection where the defendant had
an actual or subjective expectation of privacy and the claimed expectation
is one which society recognizes as reasonable. See Bond v. United States,
529 U.S. 334, 338 (2000); see also State v. Foreman, 662 N.E.2d 929, 933
(Ind. 1996) (citing Blalock v. State, 483 N.E.2d 439, 441 (Ind. 1985)
(citing in turn Smith v. Maryland, 442 U.S. 735, 740 (1979), and Katz v.
United States, 389 U.S. 347, 361 (1967) (Harlan, J., concurring)), reh’g
denied.
The first part of the analysis requires a determination that Krise
held an actual, subjective expectation of privacy in the area and personal
item searched. In making this determination, we look at the steps that
Krise took to preserve her privacy. See Bond, 529 U.S. at 338; Foreman,
662 N.E.2d at 933. Here, the purse was located in the bathroom, a common
area of the home where Tungate could gain access to it. It was not located
in a closet or inside a dresser drawer where Krise could have expected more
privacy. But the bathroom is one of the more private areas of a home.
Beyond that, the purse was located inside her home and thus was not
accessible to the general public. We do not believe that Krise’s
expectation of privacy in her home and bathroom in general, and her purse
in particular, was diminished simply because it was readily accessible to
one joint occupant, Tungate. Accord Foreman, 662 N.E.2d at 934 (“The fact
that other employees or entrusted people have a key to one’s office does
not defeat that person’s expectation of privacy in his or her commercial
premises.”); cf. Trowbridge, 717 N.E.2d at 144 (discussing privacy interest
in a tackle box located outside, on the patio, in a common area of a home).
For the second part of the analysis, we must determine whether Krise’s
expectation of privacy under these circumstances is one which society is
prepared to accept as objectively reasonable. See Bond, 529 U.S. at 338;
Foreman, 662 N.E.2d at 934. In the probable cause (not consent as here)
case, Wyoming v. Houghton, 526 U.S. 295 (1999), three United States Supreme
Court justices agreed that a search of a purse involves a serious intrusion
on privacy that is tantamount to the intrusion of a search of one’s person.
Id. at 310 (Stevens, J., dissenting). And Justice Breyer in his
concurring opinion acknowledged, “Purses are special containers. They are
repositories of especially personal items that people generally like to
keep with them at all times. …” Id. at 308 (Breyer, J., concurring). Most
recently, the Supreme Court recognized Fourth Amendment privacy interest in
an opaque carry-on luggage located in a bus above the seat of its owner.
See Bond, 529 U.S. at 338-39.
Both state and federal courts have found that the nature of a
container is significant in determining whether a third-party possessed the
requisite authority to consent to its search. See United States v.
Basinski, 226 F.3d 829, 834 (7th Cir. 2000) (locked briefcase); United
States v. Rodriguez, 888 F.2d 525, 524 (7th Cir.1989) (marked briefcase and
file box); Welch, 4 F.3d at 764 (passenger’s purse); United States v.
Salinas-Cano, 959 F.2d 861, 865 (10th Cir. 1992) (closed but unlocked
suitcase); Block, 590 F.2d 535 at 541 (the interior of footlocker); Owens
v. State, 589 A.2d 59, 66-67 (Md.) (visitor’s luggage), cert. denied, 502
U.S. 973 (1991). But see Melgar, 227 F.2d at 1042 (unmarked purse); United
States v. Sealey, 830 F.2d 1028, 1031 (9th Cir. 1987) (unmarked sealed
containers inside garage); People v. Jenkins, 997 P.2d 1044, 1094 (Cal.
2000) (expectation of privacy in suitcase but third-party consent to search
was nevertheless valid), cert. denied, __ U.S. __, 121 S. Ct. 1104 (2001).
Accordingly, we believe that society accepts as objectively reasonable that
persons have a legitimate expectation of privacy their purses and other
closed containers that normally hold highly personal items.
We do acknowledge that in cases involving the scope of automobile
searches justified by probable cause, the United States Supreme Court has
warned against constitutionally distinguishing between “worthy” and
“unworthy” containers. See Houghton, 526 U.S. at 302; Ross, 456 U.S. at
822 (citing Robbins v. California, 453 U.S. 420 (1981) (plurality
opinion)). However, Ross further explained,“[T]he Fourth Amendment
provides protection to the owner of every container that conceals its
contents from plain view . . . [and] the protection afforded by the
Amendment varies in different settings.” 456 U.S. at 822-23 (citation
omitted). Moreover, Houghton recognized that individuals have a “reduced
expectation of privacy with regard to the property that they transport in
cars” traveling on public highways where the property is subject to police
examination and is “exposed to traffic accidents that may render all their
contents open to public scrutiny.” 526 U.S. at 303; see also Acevedo, 500
U.S. at 578 (“[T]his Court has explained that automobile searches differ
from other searches.”). The Supreme Court has suggested that individuals
have a higher expectation of privacy in containers and their contents which
are located inside the sanctity of their own home — where privacy interests
are paramount — than in their vehicles where privacy interests are
diminished. Thus, Fourth Amendment protection of personal effects
including containers depends upon where the effects are located (an
automobile versus a dwelling), see id, at 580; the officer’s justification
supporting the search (probable cause versus consent), Ross, 456 U.S. at
822-23; and the type of inspection (physical versus visual), see Bond, 529
U.S. at 338-39.
C
In applying these principles to this case, a valid warrantless search
of Krise’s purse required a showing of Tungate’s mutual use of and joint
access to the premises as well as the purse. Tungate gave a voluntary
consent to the general search of the home which he shared with Krise and
had authority to do so. However, the State has not proven that Tungate had
mutual use of or joint access to Krise’s purse, and in fact, Tungate
testified that he did not have access to her purse. Nor has the State
shown that Krise gave Tungate permission to have access to her purse in any
way. Krise had a legitimate expectation of privacy in her home and her
purse and its contents. Because Tungate clearly lacked any privacy
interests in Krise’s purse, cf. Rawlings v. Kentucky, 448 U.S. 98 (1980)
(holding that the defendant did not have a legitimate expectation of
privacy in his companion’s purse, and therefore, he lacked standing to
challenge the search of the purse), we conclude that Tungate had no actual
authority to consent to the search of Krise’s purse. We also find that the
State failed to justify the search on the basis of apparent authority. At
the time Officer Underhill decided to search Krise’s purse, he knew that
the handbag was a woman’s purse and that Krise was the only woman living in
the house. Another officer testified that there was no doubt in his mind
that the handbag seized was a woman’s purse. There is no evidence showing
that Tungate told police that he shared the purse, or had joint access to
the purse in any way. The mere fact that the purse was located in the
common area of the house did not render reasonable a belief that Tungate
had the requisite authority to consent to the search of Krise’s purse.[11]
Conclusion
Having previously granted transfer, vacating the opinion of the Court
of Appeals pursuant to Indiana Appellate Rule 11(B)(3), we now reverse the
judgment of the trial court and remand for proceedings consistent with this
opinion. In reversing the trial court’s judgment denying Krise’s motion to
suppress, we need not and do not consider her remaining arguments.
SHEPARD, C.J., and DICKSON, BOEHM, and RUCKER, JJ., concur.
-----------------------
[1] Officer Ayers and Deputy Sheriff Woodhall, employed by the Decatur
County Sheriff’s Department, served the stale writ of body attachment
issued from the Shelby County Sheriff’s Department. Although the record is
unclear as to the nature of the writ, it does indicate that Krise had been
initially served with the writ on March 3, 1997, and served approximately
eighteen days in Shelby County jail.
[2] Defense Counsel elicited the following information from Tungate:
Q: At some point in time while you were there, did any of the
officers talk to you about consent, about searching your house?
A: Yes they did.
…
Q: And what was your response to [Officer Ayers]?
A: I told him no, get out of my house, very plain.
Q: Did he ask you more than one time?
A: Yeah probably ten or twelve times in the course of this time. I
mean he just continuously asked.
Q: Until the last time, what was your response?
A: Pretty much I don’t want you nosing through my stuff period. I
didn’t want them here and they knew it. They were aware of it.
I just got to the point where I was tired of hearing it. It was
obvious they wasn’t [sic] leaving. And I said do whatever you
gotta do.
…
Q: And how long did this conversation go on back and forth if you
can remember?
A: It was a half hour, forty-five minutes, somewhere in there…
Q: Now before you finally said yeah go ahead . . . what were the
officers doing?
A: Well pretty much just scattered into the living room and
kitchen. They was [sic] looking through whatever they wanted to
anyway.
(R. at 251-53.)
[3] Ind. Code §§ 35-48-2-6(d)(2) (1993) and 35-48-4-7(a)(2)(B) (Supp.
1995).
[4] The Fourth Amendment to the United States Constitution provides as
follows:
The right of the people to be secure in their persons, houses, papers,
and effects, against unreasonable searches and seizures, shall not be
violated, and no warrants shall issue, but upon probable cause,
supported by oath or affirmation, and particularly describing the
place to be searched, and the persons or things to be seized.
[5] See also Colorado v. Bertine, 479 U.S. 367, 375 (1987) (applying
this Ross passage by analogy in upholding an inventory search of a
defendant’s van which led to the search of his backpack containing drug
paraphernalia and cocaine).
[6] But see United States v. Melgar, 227 F.3d 1038 (7th Cir. 2000)
(holding Houghton authorized a warrantless search of a third-party’s purse
pursuant to a renter’s consent to search a hotel room).
[7] Federal and other state courts are also in conflict on this point.
Compare United States v. Welch, 4 F.3d 761, 764 (9th Cir. 1993) (holding
that a driver’s authority to consent to search of a rental car did not
extend to the search of the passenger’s purse); United States v. Rodriguez,
888 F.2d 519, 523-25 (7th Cir. 1989) (requiring separate third-party
authority for a general search of a room and a defendant’s briefcase
located inside the room); United States v. Block, 590 F.2d 535, 541 (4th
Cir. 1978) (holding that although a mother had authority to consent to a
search of general areas of the home, this authority did not extend to the
interior of the son’s footlocker); United States v. Poulack, 82 F. Supp.2d
1024, 1032-37 (D. Neb. 1999) (holding that a passenger’s authority to
consent to the search of a rented vehicle did not include the authority to
consent to the driver’s wrapped and sealed boxes); People v. James, 645
N.E.2d 195, 223 (Ill. 1994) (driver’s consent to search vehicle did not
include consent to search passenger’s purse); with United States v. Sealey,
830 F.2d 1028, 1031 (9th Cir. 1987) (holding that third-party’s consent to
search was valid where wife consented to search of the garage and officers
searched in unmarked sealed containers located inside); People v. Jenkins,
997 P.2d 1044, 1094 (Cal. 2000) (ruling that there was an expectation of
privacy in suitcase, but a third-party’s consent to search it was
nevertheless valid), cert. denied, __ U.S. __, 121 S. Ct. 1104 (2001).
[8] See Trowbridge v. State, 717 N.E.2d 138 (Ind. 1999) (ruling that a
third-party consent to search inside a tackle box was valid where the third-
party claimed it was his and was located outside the home), reh’g denied;
Perry v. State, 638 N.E.2d 1236 (Ind. 1994) (holding that the defendant’s
girlfriend’s consent to search a home was valid where girlfriend told
police she and defendant shared the home and the defendant himself led
police to bags of cocaine and a scale which he used to weigh marijuana);
Wright v. State, 593 N.E.2d 1192 (Ind.) (ruling that a roommate’s consent
allowed the officers to lawfully search common areas of the residence from
which the officers could see in plain view a knife sheath in the
defendant’s room on top of a dresser), cert. denied, 506 U.S. 1001 (1992).
[9] For authority on third-party consent searches, the Court of
Appeals in this case relied upon our decision in Brown v. State, 691 N.E.2d
438 (Ind. 1998). There, the defendant’s girlfriend consented to the search
of her house which she shared with the defendant. Id. at 442. The officers
searched the bedroom where they discovered a knife, gloves, and a ring on
top of the dresser and cosmetic table. Id. In finding that the dresser
and cosmetic table were under the common authority of both the defendant
and his girlfriend, this Court held that the police could reasonably
believe that the girlfriend had common authority to consent to the search.
Id. at 443-44. The Court of Appeals focused on our language, “[t]he issue
[was] not whether the girlfriend had common authority over defendant’s
personal effects, but rather whether the girlfriend had common authority
over the home, and specifically over the bedroom.” Id. at 443. While we
do recognize that this statement could have been a source of confusion, we
clarify that the personal effects we were speaking of included the dresser
and cosmetic table upon which the incriminating evidence was found in plain
view. Such a situation is entirely different from the instant case which
contemplates a third-party’s consent to search a home which led to a
warrantless search of a purse—a container—in an effort to find
incriminating evidence. Thus, the Court of Appeals’s application of Brown
v. State was misplaced.
The court also cited our decision in Bruce v. State, 268 Ind. 180, 375
N.E.2d.1042, cert. denied, 439 U.S. 988 (1978). In that case, we did hold
that where the defendant and his wife shared a bedroom, the wife “generally
had joint access” to all areas within her own bedroom, including the
defendant’s jewelry box. Bruce, 268 Ind. at 236, 375 N.E.2d at 1072. But
as Judge Friedlander recognized in his dissent in this case, “there was
ample evidence [in Bruce] that the wife had joint access” to the jewelry
box found in the shared bedroom, and therefore, it was “reasonable to
conclude that [the defendant] assumed the risk that his wife would permit a
search.” Krise, 718 N.E.2d at 1147.
[10] A different rule applies with respect to containers in vehicles
where police have probable cause to search the container itself but lack
probable cause to search the entire vehicle, see California v. Acevedo, 500
U.S. 565, 579-80 (1991), or where police have probable cause to search the
entire vehicle and “its contents that may conceal the object of the
search,” see Ross 456 U.S. at 824-25. “[C]losed containers in cars [may]
be searched without a warrant because of their presence within the
automobile” despite the protection of privacy interest in containers.
Acevedo, 500 U.S. at 572. But Acevedo and Ross apply only to vehicles.
See id. at 579-80; see also United States v. Donnes, 947 F.2d 1430, 1435
n.7 (10th Cir. 1991) (“Acevedo was expressly based on an application of the
automobile exception, and it does not alter the principle that a container
discovered inside the home is protected by the warrant requirement of the
fourth amendment.”).
[11] In finding that Tungate had no authority to consent to the search
of Krise’s purse, we do not decide whether his consent was voluntary though
we express considerable doubt that it was so.