United States v. Douglas Lynn Pennington , 287 F.3d 739 ( 2002 )

BYE, Circuit Judge,

concurring in part and concurring in the judgment.

I join the majority’s opinion except as to Part II, in which I concur only in its judgment. Part II explains that Deputy Johnston’s search of the Crown Royal bag was constitutionally justified by the consent of Mike Vickery, a person who possessed apparent authority to consent. The majority reaches this conclusion because of the bag’s proximity to Vickery and his act of tossing it to Deputy Johnston without objection. Because I am not convinced the government has demonstrated Vickery possessed apparent authority to consent to the bag’s search, I write separately.

The record reflects Deputy Johnston ordered Vickery to toss him the Crown Royal bag, an order with which he complied. The act of tossing the bag, the majority explains, “was an act of dominion and control that gave Deputy Johnston reason to conclude that Vickery had authority to consent, and had in fact consented, to Johnston’s search of the bag.” Ante at 746. The majority culls from Vickery’s bare act of compliance both authority to consent and consent itself. This I am unwilling to do. Although his acquiescence demonstrates consent to search the bag, it does not demonstrate his authority to consent to its search. In order for Deputy Johnston to have reasonably believed Vickery possessed apparent authority, he would had to have exercised dominion and control of the bag independent of Deputy Johnston’s order (not simply in response to it). This is all the more true since Deputy Johnston knew Vickery was a guest in Douglas Pennington’s home, and the bag was located on a coffee table in the home. The majority’s holding allows Deputy Johnston' — and the next police officer who faces a similar situation — to deduce apparent authority from nothing more than proximity to an object and compliance with a demand to see it. This provides officers considerable, perhaps even unbridled, latitude and therefore troubles me.

Despite my disagreement with this portion of the majority opinion, I nevertheless concur in the judgment. I believe exigent circumstances justified Deputy Johnston’s entry into the house to arrest Vickery and to prevent the destruction of drug manufacturing evidence while a search warrant was obtained, irrespective of the contents of the Crown Royal bag. While standing on the porch, Deputy Johnston smelled a strong odor associated with the manufacture of methamphetamine — pseudoephed-rine pills soaking. Deputy Johnston had participated in the June 22 search of Pennington’s property when extensive evidence related to methamphetamine manufacturing had been seized; he recognized Vickery’s name as a participant in methamphetamine trafficking; and he and other officers had heard complaints that Pennington was once again manufacturing methamphetamine. These facts alone allowed the officers to enter the home. Like the majority, I therefore reject Pennington’s contention that his arrest and the September 6 search warrant were based upon tainted evidence obtained from an unconstitutional entry into his home.