Apparent Authority Doctrine

Yesterday I was asked if a driver's consent to search their vehicle also includes the passenger's belongings within the vehicle; more specifically, purses left behind. Most officers are familiar with the ruling that upon receiving consent, police have the authority to search everything located within the vehicle including closed containers, purses, pagers, cell phones, etc. United States v. Galante, 1995 U.S. Dist. LEXIS 12376 and United States v. Ferrer-Montoya, 483 F.3d 565, 568 (8th Cir. 2007). However, it's not that simple and is entirely dependent upon the officer's reasonable belief that the the individual giving consent has either actual or apparent authority over the item(s) to be searched. If the individual does not have the requisite authority, the item may not be searched.
  • The apparent authority doctrine dictates that an officer cannot search the contents of passengers belongings upon receipt of consent from the driver unless it is apparent that the driver has authority to grant consent to search those belongings (i.e. a male driver consenting to search the vehicle does not include the female passenger's purse left behind in the vehicle).
  • With regard to actual authority to consent, a valid consent may be given by a third party who possesses common authority over the property at issue, which is generally shown by joint access or control of the property for most purposes.
    • A person possessing common authority has the authority to consent to a search. This common authority rests upon mutual use of the property and joint access or control to the location or item(s) searched. United States v. Matlock, 415 U.S. 164 (1974)
    • When officers obtain valid third-party consent, they are not also required to seek consent from a defendant, even if he is detained nearby. U.S. v. Amratriel, 2010 U.S. App. LEXIS 21166, October 14, 2010
    • The consent by one party to the seizure of property shared equally is valid even when the other party is present and refuses consent. U.S. v. King, 2010 U.S. App. LEXIS 8970 (April 30, 2010). The Georgia v. Randolph, 126 S. Ct. 1515 (2006), holding that the consent of one party with authority is trumped by the refusal of another present party with authority is limited to searches and seizures of the home, not property.

Case Example 1United States v. Welch, 4 F.3d 761 (9th Cir. 1993)
The driver gave consent to search his rental car. A female passenger in the vehicle had a purse stored in the trunk. Upon opening the purse, the police discovered $500.00 in counterfeit bills. The woman appealed her conviction, claiming that the police had illegally searched her purse without probable cause or valid consent. The Ninth Circuit Court of Appeals agreed, noting that the key issue in the case was not whether the driver could consent to a search of the vehicle generally, but rather whether the driver “had the authority, either actual or apparent, to give effective consent to the search of his companion’s purse.” Id. at 764 (emphasis in original)(footnote omitted)

"By sharing access to and use of the car with McGee, Welch relinquished, in part, her expectation of privacy in the vehicle. McGee’s voluntary consent to a search is sufficient to waive Welch’s Fourth Amendment interests in the car. Welch’s purse is another matter entirely. The fact that she had a limited expectation of privacy in the car by virtue of her sharing arrangement with McGee does not mean that she had similarly limited privacy expectation in items within the car which are independently the subject of such expectations. The shared control of ‘host’ property does not serve to forfeit the expectation of privacy in containers within that property. Id. (citation omitted)"

Case Example 2People v. James, 163 Ill.2d 302, 317 (1994)
The defendant was a passenger in a car that was stopped by officers of the Urbana police department. The officers directed the driver and the passengers to step out of the car. When the defendant exited the car, she left her purse on the front, passenger-side seat of the car. One of the officers then escorted the defendant away from the car. Although the defendant was not aware of it, the driver of the car agreed to a police search of the car.  During this search, the officer opened and looked into defendant’s purse, where they found cocaine.

The Defendant filed a motion to suppress the evidence found by police officers during the search of her purse. She argued that she had not consented to the search and that the driver lacked the authority to consent to a search of her purse. The State argued that the police officer may have incorrectly assumed that the purse belonged to the driver of the car.  Therefore, the State contended that the driver had the apparent authority to consent to a search of the defendant’s purse. The State further asserted that defendant assumed the risk that the driver of the car in which she was riding would agree to a police search of the car and its contents, including defendant’s purse. The State argues that it would be impractical to require police officers to “inquire of all of the occupants of an automobile whether they consent to the search of their belongings, and then sort out and classify all of those belongings.”

The appellate court determined that the issue on appeal was whether the driver had the apparent authority to give effective consent to the search of her companion’s purse. The court held that the officer should have ascertained who owned the purse he found in the car before he opened and searched the contents of the purse. The court further observed that it would have been objectively reasonable for the law enforcement officer to realize that the purse might belong to one of the passengers rather than to the driver.  A purse is normally carried by a woman, and all of the adult occupants of the vehicle were women.  Thus, the purse could logically have belonged to any one of the three adult women in the car.  The purse was found on a passenger seat in the car, not on the driver’s seat, thereby tending to the conclusion that the purse belonged to the passenger, not the driver.  It would have been unreasonable for the officer to believe that driver shared some common use in the purse with one of the passengers in the car, since a purse is generally not an object for which two or more persons share common use and authority. Therefore, the court held that the officer acted unreasonably when he proceeded to search the closed purse, although he was ignorant of the identity of the owner of the purse.

Other Cases 
State v. Vantreese, No. 03-00076 APANO (Fla. 6th Cir. App. Ct. April 23, 2004). It was not reasonable for the deputy to assume that the driver had the apparent authority to consent to the passenger’s purse – passenger’s purse suggested individual ownership requiring consent before the search.

State v. Friedel, 714 N.E.2d 1231 (Ind. Ct. App. 1999). Based upon the driver’s consent to search the vehicle, the police searched the passenger’s purse found on the floor behind the driver’s seat, where the passenger had been sitting. Id. at 1235. The court found that it was not objectively reasonable for the police to believe that the driver had the authority to consent to search the purse because it was a woman’s handbag and the passenger was the only female occupant of the car. Id. at 1240. The court further ruled that the passenger’s consent to the search could not be implied from her silence or failure to object because she had never been asked for consent. Id. at 1241.
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