VA: Girlfriend’s authority over room didn’t extend to boyfriend’s closed bag

By John Wesley Hall
Law Offices of John Wesley Hall
May 15, 2016

Defendant had no reasonable expectation of privacy in his girlfriend’s room because they both were staying there, but he retained it in a closed bag left in her room. She had the authority to consent to a search of the room but not to his bag. The court gives a significant analysis of the competing interests. White v. Commonwealth, 2016 Va. App. LEXIS 151 (May 10, 2016):

Here, the appellant’s behavior regarding the bag and its contents fell between these two extremes. We hold based on the totality of the circumstances, viewed in the light most favorable to the Commonwealth, that the appellant retained an expectation of privacy in the contents of the bag that society was prepared to recognize as objectively reasonable. The items were inside the bag, and no evidence indicates that the character of the items was apparent from outside the bag. The appellant left the bag in the motel room with his girlfriend, who was alone in the room when law enforcement arrived. The police believed that she had control of the room, and the evidence showed that the appellant intended to reunite with her after the drug transaction. See United States v. Morgan, 936 F.2d 1561, 1570-71 (10th Cir. 1991) (observing that leaving an item in the care of another may refute an intent to abandon it); cf. Knight, 61 Va. App. at 309 n.5, 734 S.E.2d at 722 n.5 (noting in dicta that an owner generally retains a reasonable expectation of privacy even in lost property, subject to the finder’s examining it to identify its owner). Further, before the search occurred, the appellant’s girlfriend specifically identified the bag as belonging to the appellant. These facts prove that the appellant retained an objectively reasonable expectation of privacy in the bag.

Once a defendant establishes that he had a reasonable expectation of privacy in an item and that the police searched it without a warrant, the burden shifts to the Commonwealth to prove that an exception to the warrant requirement rendered a search of the item reasonable. See, e.g., Megel v. Commonwealth, 262 Va. 531, 534, 551 S.E.2d 638, 640 (2001). The Commonwealth contends here that the appellant’s girlfriend had authority to consent to a search of the appellant’s bag and in fact did so.

. . .

Ordinarily, where a third party with actual or apparent authority provides a “general and unqualified consent for an officer to search a particular area, the officer does not need to return to ask for fresh consent to search a closed container located within that area.” Vaughan v. Commonwealth, 53 Va. App. 435, 440, 672 S.E.2d 909, 912 (2009) (quoting United States v. Jones, 356 F.3d 529, 534 (4th Cir. 2003) (citing Florida v. Jimeno, 500 U.S. 248, 251, 111 S. Ct. 1801, 114 L. Ed. 2d 297 (1991))); see also Glenn, 275 Va. at 135, 654 S.E.2d at 916 (noting that a “contrary rule would impose an impossible burden on the police” (quoting United States v. Melgar, 227 F.3d 1038, 1041 (7th Cir. 2000))). However, if the consenter volunteers ownership information about a particular container or the police “ma[k]e [inquiry],” they “must be reasonable in drawing conclusions from the responses received.” 4 Wayne R. LaFave, Search and Seizure § 8.3(g), at 245 n.171 (5th ed. 2012); see Glenn, 275 Va. at 135, 654 S.E.2d at 916 (stating that a search is reasonable where the police “do not have reliable information that the container is not under the authorizer’s control” (quoting Melgar, 227 F.3d at 1041)).

Applying these principles in Glenn, 275 Va. 123, 654 S.E.2d 910, the Supreme Court of Virginia held that consent to search a residence, coupled with an absence of information that any containers within the area belonged to someone other than the consenter, made it “objectively reasonable” for the officers to conclude that they had apparent authority to search a backpack in the residence. 275 Va. at 133-34, 136, 654 S.E.2d at 915, 916. The Court noted that the backpack could have belonged to any of the occupants of the premises and that “some ambiguity attended the ownership and ability to access the backpack.” Id. at 134, 654 S.E.2d at 915. Nevertheless, it held that this ambiguity was not controlling on the issue of apparent authority and the search was reasonable. Id. The Court observed, by contrast, that if the backpack had “borne Glenn’s name or other identifying marks,” or if it had been “locked or secreted among possessions which were exclusively Glenn’s, there would likely be few circumstances where an objectively reasonable police officer could conclude [that Glenn’s grandfather, the owner of the premises,] had the authority to consent to a search of the bag.” Id. at 133, 654 S.E.2d at 915.

. . .

Guided by Glenn, we reach a similar result here. In the appellant’s case, it was unreasonable for Investigator Sapp to conclude that the appellant’s girlfriend had the authority to consent to the search of the bag because she specifically told Sapp that the bag belonged to the appellant. Sapp was not required to speculate about who owned it. See also, e.g., United States v. Zapata-Tamallo, 833 F.2d 25, 27 (2d Cir. 1987) (recognizing that consent to search provided by the owner of premises “is generally invalid when it is ‘obvious’ that the searched item belongs to a guest” (quoting United States v. Isom, 588 F.2d 858, 861 (2d Cir. 1977))). Compare United States v. Salinas-Cano, 959 F.2d 861, 863-65 (10th Cir. 1992) (holding that girlfriend lacked actual or apparent authority to consent to the search of her boyfriend’s bag, which he stored in her apartment, because she identified the bag as his and no evidence indicated that she “exercised mutual use or possessed … joint interest and control over [it]”), with United States v. Ruiz, 428 F.3d 877, 881-82 (9th Cir. 2005) (holding that a resident had apparent authority to consent to the search of a gun case in plain view on a living room shelf even though he “disclaimed knowledge” regarding its contents because he “did not disclaim ownership of or access to the case”). Accordingly, we hold that it was unreasonable for Sapp to conclude that the appellant’s girlfriend had apparent authority to consent to a search of the bag and had, in fact, given such consent.