People v. James

JUSTICE LUND

delivered the opinion of the court:

The State appeals an order of the circuit court of Champaign County suppressing cocaine evidence taken from the purse of defendant Delores James. Defendant was a front-seat passenger in an automobile driven by Ruth Boolman, when the vehicle was stopped to investigate a possible license violation. After determining there was no serious problem with the vehicle license, the officer stated that the area was a high drug-traffic area and the officers were checking vehicles. For purposes of this appeal, we assume Boolman, outside defendant’s presence and without her knowledge, consented to a search of the vehicle for drugs. Officers removed the defendant and three other passengers from the vehicle, at which time defendant left her purse on the front seat. During the search, officers opened the purse and found a pipe and a substance possibly being cocaine. There was no evidence to indicate defendant gave permission for the search of her purse or, for that matter, the automobile.

The State contends the consent to search the automobile for drugs permitted police to search the purse. The trial court agreed that consent to search an auto for drugs would extend to containers, acknowledging Florida v. Jimeno (1991), 500 U.S. 248, 114 L. Ed. 2d 297, IllS. Ct. 1801, and People v. Kelk (1992), 231 Ill. App. 3d 797, 596 N.E.2d 1267. However, the court decided Jimeno and Kelk are different because, here, we have five people in the automobile and, in the words of the trial judge:

“The purse is found where one of those other persons who has not given consent to search the car or container was seated. *** I’m inclined to hold that there was no consent to search that particular purse under all the circumstances here.”

Jimeno and Kelk establish that when a driver consents to the search of a vehicle for drugs, the right to search extends to closed containers. Part of the reason for this rule is that drugs are usually kept in closed containers. With this opinion we go further and say that when a driver consents to a search for drugs, that consent extends to containers — be they purses, wallets, cases, boxes, sacks, or otherwise — left in the vehicle by exiting passengers. This is true regardless of the passenger’s knowledge of the driver’s consent.

The Supreme Court in Jimeno held that a consent to search a vehicle for drugs extended to closed containers. In doing so, it was acknowledged that the “touchstone of the Fourth Amendment is reasonableness,” citing Katz v. United States (1967), 389 U.S. 347, 360, 19 L. Ed. 2d 576, 587, 88 S. Ct. 507, 516. (Jimeno, 500 U.S. at 250, 114 L. Ed. 2d at 302, 111 S. Ct. at 1803.) We are not inclined to say that driver consent to search for drugs extends to closed containers but not those closed containers which may belong to others who have exited the vehicle. We ponder how the searching officers will distinguish between ownership of the various containers in the vehicle. In the search process, such split-second decisions are likely given little thought.

A third party may give legally sufficient consent for a search if he has actual authority over the property shared in common with the defendant. (United States v. Matlock (1974), 415 U.S. 164, 171, 39 L. Ed. 2d 242, 250, 94 S. Ct. 988, 993.) By allowing the driver to exercise authority over a vehicle, a defendant assumes the risk that the driver will allow someone to look inside it. (People v. Miller (1975), 36 Ill. App. 3d 542, 549, 345 N.E.2d 1, 7-8; see also People v. Harris (1990), 199 Ill. App. 3d 1008, 1013, 557 N.E.2d 1277, 1280.) We find no justifiable reason to limit the effect of driver consent to search where a passenger aware or unaware of the consent to search leaves a container in the automobile.

Reversed and remanded.

KNECHT, J., concurs.