United States v. Purcell ( 2008 )

RECOMMENDED FOR FULL-TEXT PUBLICATION
Pursuant to Sixth Circuit Rule 206
File Name: 08a0202p.06
UNITED STATES COURT OF APPEALS
FOR THE SIXTH CIRCUIT
_________________
X
Plaintiff-Appellant, -
UNITED STATES OF AMERICA,
-
-
-
No. 07-5517
v.
,
>
FREDERICK PURCELL, JR., -
Defendant-Appellee. -
N
Appeal from the United States District Court
for the Eastern District of Kentucky at Covington.
No. 06-00061—David L. Bunning, District Judge.
Argued: March 13, 2008
Decided and Filed: May 29, 2008
Before: MOORE, GILMAN, and SUTTON, Circuit Judges.
_________________
COUNSEL
ARGUED: Andrew Sparks, ASSISTANT UNITED STATES ATTORNEY, Lexington, Kentucky,
for Appellant. Wende C. Cross, CROSS, SMITH & ASSOCIATES, Cincinnati, Ohio, for Appellee.
ON BRIEF: Andrew Sparks, Charles P. Wisdom, Jr., ASSISTANT UNITED STATES
ATTORNEYS, Lexington, Kentucky, for Appellant. Wende C. Cross, CROSS, SMITH &
ASSOCIATES, Cincinnati, Ohio, for Appellee.
MOORE, J., delivered the opinion of the court, in which GILMAN, J., joined. SUTTON,
J. (pp. 10-12), delivered a separate opinion concurring in part and dissenting in part.
_________________
OPINION
_________________
KAREN NELSON MOORE, Circuit Judge. In this case we are asked whether the discovery
of men’s clothing in a bag that a female claimed to own erases for future bags the apparent authority
that justified the officers’ warrantless search of the first bag, thereby making a subsequent search
illegal. We hold that the discovery of men’s clothing eviscerated any apparent authority, but that
the officers could have reestablished apparent authority by asking the supposed bag owner to verify
her control over the other bags to be searched. Furthermore, we hold that exigent circumstances did
not justify the illegal search. Because the officers in the instant case did not reestablish apparent
authority and could not justify proceeding with a warrantless search by claiming an exigency, we
hold that district court did not err when it suppressed the firearm that officers discovered after any
1
No. 07-5517 United States v. Purcell Page 2
apparent authority dissipated, and we AFFIRM the district court’s partial grant of the defendant’s
motion to suppress.
I. BACKGROUND
A. Factual Background
On June 28, 2006, Special Agent John Scott (“Scott”) and the Southern Ohio Fugitive
Apprehension Strike Team (“SOFAST”)1 received a tip that Frederick Purcell, Jr. (“Purcell”), an
escapee from prison, was staying at a hotel in Kentucky. The tip indicated that Purcell was residing
at the hotel with his girlfriend, Yolande Crist (“Crist”). As Scott and the other members of SOFAST
drove to the hotel, they received information that Purcell “was a meth manufacturer and that Blue
Ash[, Ohio police] had arrested him for manufacturing meth.” Joint Appendix (“J.A.”) at 64 (Hr’g
Tr., John Scott Test. at 6:23-24).
Upon arrival at the hotel, the SOFAST agents quickly identified Purcell standing outside and
arrested him without incident. After arresting Purcell, Scott and the other SOFAST agents went to
Purcell’s hotel room. The agents were concerned that, given what they knew of his history, Purcell
may have been manufacturing methamphetamine in the room. As Agent Scott noted, “I’m basically
an ATF agent so my knowledge of meth manufacturing is basically the explosive potential of it. So
we were concerned about endangerment of the hotel guests.” J.A. at 65 (Scott at 7:15-17).
The officers knocked on the door to Purcell’s room and could hear the shower running as
well as a fan blowing. After about three minutes, Crist opened the door and assured the officers that
there was no methamphetamine manufacturing occurring in the room. Crist then gave her consent
for the officers to take a quick look around the room. Although Crist would later authorize a full
search of the room, during this first search the agents did only what Crist authorized them to do:
perform a cursory sweep of the room.
During this initial sweep of the room, the agents observed “two duffel type bag suitcases near
the door” and a backpack located between the bed and window at some distance from the two duffel
bags. (Omitted from J.A., Scott at 16:19-20); J.A. at 95 (Dec. 14, 2006, Hr’g Tr., M. Duane Rolfsen
Test. at 58:21-24). Clothes covered most of the rest of the floor, but despite the mess, the agents
noticed several suspicious items, such as possible marijuana leaves, steel wool, a butane torch, the
shower operating at full strength, and a box fan blowing air out from the shower. Having observed
these suspicious items, the agents called for assistance from officers with experience identifying and
handling methamphetamine labs.
Agent Matthew Duane Rolfsen (“Rolfsen”) of the Northern Kentucky Drug Strike Force was
called to the scene because he was certified to process methamphetamine labs and had dealt with
Purcell on a prior occasion. Agent Rolfsen, like the first agents to arrive on the scene, was also
concerned about the hazards that a methamphetamine lab in a hotel room might pose:
Our immediate concern, due to his past history and what he was actually serving time
on when he escaped, was the meth lab itself, was for the community safety and the
hotel safety and the patrons’ safety that were in the hotel. If there is a meth lab, there
is a lot of chemical hazards. There’s a lot of safety hazards. It’s a possibility of
dying from the fumes and the chemicals involved in making methamphetamine.
J.A. at 81 (Rolfsen at 33:9-15).
1
The U.S. Marshal Service runs SOFAST, which employs members of various state and federal law-
enforcement agencies.
No. 07-5517 United States v. Purcell Page 3
Upon arriving at the hotel, Agent Rolfsen talked to Agent Scott and then conducted his own
cursory sweep of the hotel room. Agent Rolfsen observed the same suspicious items as Agent Scott,
but Agent Rolfsen also noticed cookware “consistent with manufacturing methamphetamine,”
cutting agent, “a metal spoon with burnt material,” a torch, “brass material consistent with use for
making pipes to smoke” drugs, and “plastic tubes, which is consistent with snorting various drugs.”
J.A. at 83 (Rolfsen at 35:2-13). Although the agents identified some evidence, such as the
cookware, that was consistent with methamphetamine production, it is notable that Agent Rolfsen
did not smell any of the telltale chemical odors that often accompany methamphetamine labs. Agent
Rolfsen noted, however, that the lack of smell was not conclusive: “once you’ve done the cook,
there’s not always a smell. Depends how much material is still there.” J.A. at 89 (Rolfsen at 49:10-
14).
After making his initial sweep of the room, Agent Rolfsen asked Crist for and received
permission to conduct a more complete search. As Agent Rolfsen and other officers began the
search, they asked Crist whether there was anything in the room that could be dangerous, and “[s]he
indicated there was a firearm in the room.” J.A. at 84 (Rolfsen at 36:20-24). Crist did not mention
any methamphetamine-related dangers, but she did state that a firearm was in one of the bags in the
room, although she was not sure which one. Agent Rolfsen moved toward the duffel bags by the
door and pointed to “a green brown bag” and asked Crist “[i]s it this bag?” Crist responded that “it
might be.” J.A. at 85 (Rolfsen at 37:1-3). Agent Rolfsen opened that first duffel bag near the door,
and as he was searching it Crist “said that was her bag because she set her purse on top of it.” J.A.
at 94 (Rolfsen at 56:6-7). Upon opening the bag, Agent Rolfsen discovered marijuana but no
firearm. In addition to the marijuana, Agent Rolfsen discovered that the bag did not contain Crist’s
personal effects, as one might expect, but instead contained only men’s clothing.
The discovery of the men’s clothing inside the bag indicated that it was actually Purcell’s
bag, not Crist’s, as she had claimed. This was not a complete surprise for the agents because they
knew that Purcell owned some of the items in the room even though they did not know initially
which bags were his; “[Crist] definitely said there was [sic] items in that room that belonged to Fred
Purcell.” J.A. at 92 (Rolfsen at 53:15-16). Although Agent Rolfsen realized that Crist had misstated
her ownership of the bag, he did not ask her to verify whether she owned any of the other bags in
the room. Shortly thereafter, another agent found the firearm in a brown-green backpack that was
not sitting near the other closed bags by the door but was instead sitting “on the floor by the bed and
between the bed and the window.” J.A. at 95 (Rolfsen at 58:21-24). After discovering the firearm,
the agents asked Crist who owned the backpack, and Crist noted that she owned the backpack itself,
but she had given it to Purcell for his use.
As it turned out, Purcell was the sole user of both the bag containing the firearm and the bag
containing the marijuana. None of Crist’s effects were in Purcell’s bags, he did not give her
permission to go through his bags, and she never went through them. Crist did own the backpack
itself, but at the time of the search, Purcell had exclusive use of the backpack that contained the
firearm.
B. Procedural Background
On August 9, 2006, a grand jury indicted Purcell for being a felon in possession of a firearm
in violation of 18 U.S.C. § 922(g)(1), a fugitive from justice knowingly possessing a firearm in
violation of 18 U.S.C. § 922(g)(2), an unlawful user of marijuana in possession of a firearm in
violation 2of 18 U.S.C. § 922(g)(3), and for possession of marijuana in violation of 21 U.S.C.
§ 844(a).
2
The indictment also included a count seeking forfeiture of the firearm.
No. 07-5517 United States v. Purcell Page 4
Prior to trial, on November 21, 2006, Purcell filed a motion to suppress both the firearm and
the marijuana that the agents discovered in the search of his luggage. On March 23, 2007, the
district court granted Purcell’s request to suppress the firearm and denied Purcell’s request to
suppress the marijuana.
In reaching its conclusion, the district court rejected the government’s assertion that the
search was justified under the exigent-circumstances exception to the Fourth Amendment. The
district court did not believe that the agents were legitimately concerned about the dangers of a
methamphetamine lab after completing their cursory sweeps of the room; the agents’ “actions in
asking a second time for consent, that time to search the room, strongly suggests that the immediate
danger was no longer present.” J.A. at 21 (Mem. Op. & Order at 9). The district court went on to
say that “[t]here is nothing to suggest that a search of the luggage was necessary as part of the
exigency of ensuring there was no meth lab in the room, nor would it be objectively reasonable to
find that such a search was within the scope of Crist’s initial consent to look around to verify the
area was safe.” J.A. at 22 (Mem. Op. & Order at 10).
The district court also rejected the government’s assertion that Crist had either actual or
apparent authority to consent to the search of the bag that held the firearm. First, the district court
concluded that Crist did not have actual authority to consent to the search of either bag: “Ms. Crist
gave no testimony that would suggest she enjoyed any mutual use, access, or control of the duffel
bag or backpack or the items within it, and the Government has provided no evidence to refute this
claim.” J.A. at 28 (Mem. Op. & Order at 16). Second, according to the district court, there was
apparent authority for the officers to search the first bag because at the time of the search of the first
bag “there was no evidence offered to suggest reason to doubt the accuracy or truthfulness of her
response that the duffel bag was hers.” J.A. at 31 (Mem. Op. & Order at 19). In contrast, the district
court found that Crist’s apparent authority was “extinguished with the search of that first bag” after
the officers found it was filled with men’s clothing, leaving Crist with no apparent authority to
consent to the search of the second bag. J.A. at 32 (Mem. Op. & Order at 20).
On April 3, 2007, the government filed a motion for reconsideration, asking the district court
to use United States v. Atchley, 474 F.3d 840 (6th Cir.), cert. denied, ___ U.S. ___, 127 S. Ct. 2447
(2007), to hold that the search of all of the luggage in Purcell’s hotel room was valid under the
exigency exception to the Fourth Amendment. On April 18, 2007, the district denied the
government’s motion for reconsideration of the district court’s suppression order, concluding that
Atchley did not justify a warrantless search in this case. The district court believed that, in contrast
to Atchley, “further search was not driven by any objectively reasonable urgency for fear of a hidden
lab or dangerous chemicals, but rather for the firearm specifically, or perhaps maybe some other
weapon or item that might pose a danger generally to those searching.” J.A. at 45 (Apr. 18, 2007,
Mem. Order at 9).
On April 20, 2007, the government filed an interlocutory appeal challenging the district
court’s suppression of the firearm. We have authority to hear this case under 18 U.S.C. § 3731,
authorizing the court of appeals to hear interlocutory appeals brought by the United States following
a district court’s suppression of evidence that “is a substantial proof of a fact material in the
proceeding.” 18 U.S.C. § 3731.
II. ANALYSIS
“In assessing a challenge to the district court’s ruling on a motion to suppress, we review the
district court’s factual findings for clear error, and its legal conclusions de novo.” United States v.
Waller, 426 F.3d 838, 843 (6th Cir. 2005); accord Atchley, 474 F.3d at 847.
No. 07-5517 United States v. Purcell Page 5
Our search jurisprudence typically requires officers to possess a warrant before conducting
a search. There are, however, exceptions to the warrant requirement. “One of those
‘well-delineated’ exceptions is the consent of the person searched. An officer with consent needs
neither a warrant nor probable cause to conduct a constitutional search.” United States v. Jenkins,
92 F.3d 430, 436 (6th Cir. 1996), cert. denied, 520 U.S. 1170 (1997). And one of the other
exceptions is the existence of exigent circumstances. Mincey v. Arizona, 437 U.S. 385, 392-393
(1978). On appeal, the government has presented alternative arguments attempting to justify the
agents’ warrantless search under one of these two exceptions, providing no other justifications for
the warrantless search other than arguing that (1) exigent circumstances justified the search, and
(2) Crist had apparent authority to consent to the search of the backpack. We conclude that there
was neither any exigent circumstance nor apparent authority to justify the search of the backpack.
A. Exigent Circumstances
The government claims that the warrantless search that led to the discovery of the firearm
was justified by exigent circumstances. Although the Fourth Amendment makes a warrant or
obtaining consent a prerequisite for a legal search,“‘[t]he need to protect or preserve life or avoid
serious injury is justification for what would be otherwise illegal absent an exigency or
emergency.’” Id. (quoting Wayne v. United States, 318 F.2d 205, 212 (D.C. Cir. 1963)).
Qualification for this exception is not easy, for “[w]hen there is neither a warrant nor consent, courts
will only permit a search or seizure to stand under extraordinary circumstances.” United States v.
Chambers, 395 F.3d 563, 565 (6th Cir. 2005).
In order to establish the applicability of this exception to the Fourth Amendment’s
requirements, “[i]t is the government’s burden to prove the existence of exigency.” Atchley, 474
F.3d at 851. “While it is not possible to articulate a succinct yet exhaustive list of circumstances that
qualify as ‘exigent,’ we have previously characterized the situations in which warrantless entries are
justified as lying within one of four general categories: (1) hot pursuit of a fleeing felon,
(2) imminent destruction of evidence, (3) the need to prevent a suspect’s escape, and (4) a risk of
danger to the police or others.” United States v. Rohrig, 98 F.3d 1506, 1515 (6th Cir. 1996). Courts
that have found that exigent circumstances existed “uniformly cite the need for prompt action by
government personnel, and conclude that delay to secure a warrant would be unacceptable under the
circumstances.” Id. at 1517. The case at hand presents a question of whether the circumstances
indicated a risk of danger that made it unacceptable for the agents to delay their search in order
procure a warrant.
Methamphetamine labs are rightly regarded as highly dangerous. “Certain of the chemicals
used in this process are toxic and inherently dangerous. During the manufacturing process, some
of these chemicals, which are highly flammable, present a threat of explosion. These chemicals pose
an additional risk should anything go wrong during the manufacturing process. The process
produces toxic gases, which pose a serious risk to those who inhale them, and other dangerous
byproducts.” United States v. Layne, 324 F.3d 464, 470 (6th Cir.), cert. denied, 540 U.S. 888
(2003). “Many of these chemicals emit dangerous fumes and vapors. The byproduct of the process
includes highly flammable and explosive phosphine gas.” Id. Although methamphetamine labs are
dangerous, the danger is primarily tied to the heating process and the resulting fumes or
explosiveness; on their own, the ingredients are safe enough that they are common, easily accessible
products. See Drug Enforcement Administration, Fact Sheet: Fast Facts About Meth,
http://www.usdoj.gov/dea/pubs/pressrel/methfact03.html (last visited Apr. 28, 2008).
In the instant case, the government claims that the possibility that Purcell was manufacturing
methamphetamine in his hotel room created a danger to the agents and hotel guests that justified the
warrantless search of Purcell’s luggage. According to the government, our holding in Atchley
compels the conclusion that an exigency existed, but we disagree.
No. 07-5517 United States v. Purcell Page 6
In the case at hand, the only reasons why the officers suspected that there was a
methamphetamine lab in Purcell’s room were that he had previously operated methamphetamine
labs and they noticed some drug-related items in his hotel room. However, not one agent testified
to believing that methamphetamine cooking was ongoing when the agents arrived. This is in sharp
contrast to Atchley. In that case, there was a significant amount of evidence indicating that the
dangerous manufacture of methamphetamine was ongoing: “Officer Engle stated that he smelled
a chemical which he associated with methamphetamine manufacturing. When the officers entered,
they observed in plain view two large glass jars appearing to contain a solvent, a large bottle of gas
line anti-freeze, rubbing alcohol, and a police radio scanner.” Atchley, 474 F.3d at 845. Given that
the manufacture of methamphetamine is so dangerous, the Atchley court found the warrantless
search justified because the officers had significant evidence of methamphetamine manufacture; in
contrast, we observed that evidence of simply drug use or possession “would not establish the
exigency necessary to validate a warrantless search.” Id. at 851.
In Purcell’s case, there was no evidence to suggest that methamphetamine manufacture was
ongoing, thus there was no exigency to justify searching Purcell’s luggage. In the absence of an
exigency, Atchley simply does not control this case. Had there been evidence of an ongoing
methamphetamine lab, Atchley would have entitled the agents to search small containers, such as
small pieces of luggage, even though an operational laboratory could not have fit in Purcell’s
baggage. See id. at 846 (“The district court found that although Cobb and Engle’s search of the
refrigerator, ice chest, ammunition can, and drawer was not justified as part of the protective sweep,
it was nonetheless lawful because the items that were in plain view gave the officers probable cause
to suspect that the motel room served as a methamphetamine laboratory.”). In this case, however,
the predicate that would justify the search of small places such as luggage—evidence of a
methamphetamine lab that creates an exigency—was simply not present.
Furthermore, evidence of a methamphetamine laboratory by itself is not always sufficient
to create an exigency. Id. at 851 n.6 (“We do not intend to say that there should be a per se rule that
whenever evidence of a methamphetamine laboratory is apparent, there is always exigency.”). In
this case, however, not only was there no evidence of an operating methamphetamine laboratory,
but also the government’s claims of exigency appear to be only a post hoc justification for the
warrantless search because the agents searching Purcell’s room did not seem particularly concerned
for their own safety or the safety of other hotel guests after they had conducted their sweep of
Purcell’s room. If the officers were truly concerned about a dangerous condition, why did the agents
twice ask Crist for permission to search the room? And if the agents were worried about a
methamphetamine laboratory, why were they searching in the luggage for a firearm? The answers
to these questions belie the government’s assertion that the agents were concerned about a possible
methamphetamine lab in Purcell’s hotel room. We therefore hold that exigent circumstances did not
justify the warrantless search of Purcell’s backpack.
B. Consent
The government’s only other argument is that Crist’s consent justified the warrantless search
of Purcell’s luggage. In order to consent to a search, the person purporting to consent must possess
either actual or apparent authority over the item or place to be searched. United States v. Caldwell,
518 F.3d 426, 429 (6th Cir. 2008). Once an individual with actual or apparent authority consents
to the search, “[t]he standard for measuring the scope of a suspect’s consent under the Fourth
Amendment is that of ‘objective’ reasonableness—what would the typical reasonable person have
understood by the exchange between the officer and the suspect?” Florida v. Jimeno, 500 U.S. 248,
251 (1991). Thus, when an officer receives consent, he is allowed to search only what is reasonably
covered by the consent given; “[i]t is very likely unreasonable to think that a suspect, by consenting
to the search of his trunk [of his car], has agreed to the breaking open of a locked briefcase within
the trunk, but it is otherwise with respect to a closed paper bag.” Id. at 251-52.
No. 07-5517 United States v. Purcell Page 7
Purcell did not and was not entitled to bring an interlocutory appeal challenging the district
court’s denial of his motion to suppress the marijuana. United States v. Shameizadeh, 41 F.3d 266,
267 (6th Cir. 1994) (Order) (“Although 18 U.S.C. § 3731 permits the government to take an
immediate appeal from an order granting a pretrial motion to suppress, that statute does not provide
for a cross-appeal by a defendant. . . . Thus, while the defendants may raise as part of the
government’s appeal any alternative arguments which would have supported the order of
suppression, they may not . . . raise any arguments as to evidence not ordered suppressed by the
district court.”). When defending the grant of the motion suppressing the firearm, Purcell
acknowledges that apparent authority justified the search of the first duffel bag, which yielded the
marijuana. Appellee Br. at 12 (“Thus, as the district court properly concluded, ‘[the officers’]
reliance upon Crist’s response [regarding the first bag] was reasonable, as there was no evidence
offered to suggest reason to doubt the accuracy or truthfulness of her response that the duffel bag
was hers.’” (quoting Mem. & Op. at 19)). We therefore assume that the district court was correct
in holding that apparent authority justified the search of the first bag. We do, however, hold that
neither actual nor apparent authority justified the search of the second bag, which yielded the
firearm.
1. Actual Authority
Actual authority in third-party consent cases “rests . . . on mutual use of the property by
persons generally having joint access or control for most purposes, so that it is reasonable to
recognize that any of the co-inhabitants has the right to permit the inspection in his own right and
that the others have assumed the risk that one of their number might permit the [property] to be
searched.” United States v. Matlock, 415 U.S. 164, 171 n.7 (1974). Crist offered uncontroverted
testimony establishing that her personal effects were not in Purcell’s bags, Purcell exercised
exclusive control over his bags, and Purcell never gave Crist permission to open his bags. These
factors would all tend to establish that Crist lacked actual authority to consent to the search of the
bag containing Purcell’s clothing and the firearm. On appeal, however, the government does not
claim that Crist had actual authority to consent to the search of Purcell’s bags; therefore, we do not
address whether Crist had actual authority to consent to the search, and we simply assume that she
did not possess actual authority.
2. Apparent Authority
“We have held that even where third-party consent comes from an individual without actual
authority over the property searched, there is no Fourth Amendment violation if the police conducted
the search in good faith reliance on the third-party’s apparent authority to authorize the search
through her consent.” Morgan, 435 F.3d 660, 663 (6th Cir. 2006) (finding apparent authority where
a wife claimed to have authority to access to her husband’s computer). In investigating whether
officers reasonably concluded an individual possessed apparent authority, the “determination of
consent . . . must ‘be judged against an objective standard: would the facts available to the officer
at the moment . . . warrant a man of reasonable caution in the belief’ that the consenting party had
authority over the [property]?” Illinois v. Rodriguez, 497 U.S. 177, 188 (1990) (second omission
in original) (quoting Terry v. Ohio, 392 U.S. 1, 21-22 (1968)). In deciding whether the officers
acted reasonably, “[t]he most we can ask is if the officer’s interpretation of the spoken words was
reasonable in light of the contextual information that the record does contain.” Jenkins, 92 F.3d at
436.
In the case at hand, when the agents began their search of the luggage in the hotel room, they
had a good-faith basis to believe that Crist had authority to consent. Crist asserted that the duffel
bag that yielded the marijuana was hers, and her purse was sitting on top of the duffel bag. Crist’s
statements created apparent authority for the officers, and their search of the duffel bag was justified
No. 07-5517 United States v. Purcell Page 8
because they acted in good-faith reliance upon Crist’s assertions.3 Purcell acknowledges in his brief
that the officers reasonably relied upon Crist’s assertion of authority over the duffel bag.
Even if the officers’ search of the duffel bag was justified by Crist’s apparent authority,
apparent authority cannot exist if there is ambiguity as to the asserted authority and the searching
officers do not take steps to resolve the ambiguity. “The government cannot establish that its agents
reasonably relied upon a third party’s apparent authority if agents, faced with an ambiguous
situation, nevertheless proceed without making further inquiry. If the agents do not learn enough,
if the circumstances make it unclear whether the property about to be searched is subject to mutual
use by the person giving consent, then warrantless entry is unlawful without further inquiry.”
Waller, 426 F.3d at 846 (internal quotation marks omitted).
Before the officers began their search, the situation was relatively unambiguous—Crist
claimed the duffel bag was hers, and the officers had no reason to doubt that. However, once the
officers found that the first bag contained men’s clothing and none of Crist’s personal effects,
ambiguity clouded Crist’s authority to consent to the search of the backpack.4 When a situation
starts as unambiguous but subsequent discoveries create ambiguity, any apparent authority
evaporates. See Rodriguez, 497 U.S. at 188 (“Even when the invitation is accompanied by an
explicit assertion that the person lives there, the surrounding circumstances could conceivably be
such that a reasonable person would doubt its truth and not act upon it without further inquiry.”);
Jenkins, 92 F.3d at 437 (“Of course, if the consenter provides additional information, the context
may change in such a manner that no reasonable officer would maintain the default assumption.”).
Once ambiguity erases any apparent authority, it is not difficult for the searching officers to
reestablish the would-be-consenter’s authority. The options for searching officers are simple: either
they may get a warrant, or they may simply ask the would-be-consenter whether he or she possesses
the authority to consent to the search of the other items that the officers wish to explore. See Waller,
426 F.3d at 849 (“The officers’ failure to make further inquiry is especially pronounced in this case
because Howard was in the next room when the police found the luggage, and Waller was being
detained outside the apartment. It would not have been burdensome for the officers to have asked
Howard whether the luggage belonged to him (or to either of the women who were present in the
apartment) prior to opening the bag.”). Although Crist was standing outside the hotel room during
the entire search, the agents never asked Crist to clarify her authority over any of the other bags in
the room. Therefore, Crist’s apparent authority, which justified the search of the first bag, dissipated
upon the discovery of the men’s clothing and was not reestablished, leaving Crist without apparent
authority to consent to the search of the backpack.
The government attempts to argue that even if Crist’s initial assertions of control over the
bags are not enough to sustain her apparent authority after the discovery of the men’s clothing, the
fact that Crist was in an intimate relationship with Purcell provided another basis for her apparent
authority. Being in an intimate relationship, however, does not endow a would-be-consenter with
3
The dissent mischaracterizes our opinion as requiring that police possess “positive knowledge” of joint access
and control before a search is permissible. Dissenting Op. at 12. Our holding that the search of the first bag was
reasonable refutes the dissent’s mistaken interpretation. Positive knowledge is simply not required; Crist’s
uncontradicted statements established apparent authority that dissipated only when the officers discovered evidence that
undermined her assertions of authority. We ask only whether “a [person] of reasonable caution” would believe “that
the consenting party had authority over the [property],” Rodriguez, 497 U.S. at 188, which is hardly the onerous standard
that the dissent suggests.
4
The dissent raises a hypothetical case that is clearly distinguishable from the one before us today. While there
might be a situation where the search of the first bag would have revealed evidence that “confirmed that the couple
shared luggage,” Dissenting Op. at 11, such a situation does not exist in this case. The only clothing that the police
discovered in the bag was men’s clothing, which hardly “confirms” that Crist and Purcell shared luggage.
No. 07-5517 United States v. Purcell Page 9
any additional sheen of apparent authority that would survive the discovery of evidence that
contradicts the consenter’s asserted authority. See Morgan, 435 F.3d at 663 (finding apparent
authority from a wife’s assertion of common authority, but not from the fact that the party granting
consent was the defendant’s wife); Waller, 426 F.3d at 848 (approvingly citing United States v.
Salinas-Cano, 959 F.2d 861 (10th Cir. 1992), where the Tenth Circuit did not automatically find
consent where a girlfriend attempted to consent to a search of her boyfriend’s briefcase). Thus, the
facts surrounding any particular intimate relationship might contribute to the officers’ good-faith
basis for initially believing a would-be-consenter’s assertion of authority, but that good-faith belief
is still subject to the same constraints that5 apply whenever new information comes to light that
creates ambiguity as to apparent authority.
Thus, we conclude that the discovery of the men’s clothing in the duffle bag that Crist
claimed was hers created ambiguity sufficient to erase her apparent authority and necessitated that
the officers reestablish Crist’s apparent authority. Because the officers continued their search
without reestablishing Crist’s apparent authority, the firearm was discovered as part of an illegal
search, and the district court did not err when it suppressed the firearm.
III. CONCLUSION
For the foregoing reasons, we conclude that exigent circumstances did not justify the search
of the hotel room and that Crist did not have apparent authority to consent to the search of the
second bag. Accordingly, the district court did not err when it suppressed the firearm, and we
AFFIRM the district court’s partial grant of the motion to suppress.
5
The dissent urges this court to create a new default assumption that “itinerant, intimate couples sharing close
quarters have joint use of indistinguishable containers within the space they occupy.” Dissenting Op. at 12. Although
there are no doubt many couples who do share luggage when they travel, the possible travel habits of some is hardly a
sound basis for an unprecedented expansion of police authority.
No. 07-5517 United States v. Purcell Page 10
_______________________________________________
CONCURRING IN PART, DISSENTING IN PART
_______________________________________________
SUTTON, Circuit Judge, concurring in part and dissenting in part. The question at hand is
whether the officers’ search of the backpack was “[]reasonable.” 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 (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 (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 (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 own. 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 F. App’x 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
No. 07-5517 United States v. Purcell Page 11
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 (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 traveling
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
(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 (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 “[b]eing 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 9 (emphasis added). But that is beside
the point. The intimate relationship helps to explain the presence of male clothing in Crist’s bag and
No. 07-5517 United States v. Purcell Page 12
therefore shows that nothing “contradict[ed]” 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 (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 (internal quotation marks omitted).
In 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.