D.C.Cir.: Common authority over premises did not extend to a shoebox next to bed in defendant’s separate bedroom

The cotenant consenter lacked common authority to consent to a search of a shoebox that was next to defendant’s separate bed. She stated to the police that it was his stuff in the room, and that put the police on notice she lacked common authority. United States v. Peyton, 745 F.3d 546 (D.C. Cir. 2014):

At first, this limitation on the scope of common authority might seem to put the police in a bind. Must an officer, having determined that a person has common authority over an apartment, separately confirm her authority over every closed container in the apartment before relying on her consent to conduct a search? No, for in many instances the person’s common authority over the larger area (say, the living room) will make it reasonable for the police to believe that she shares use of its closed containers (say, the drawers of the television stand). She will have apparent authority over those spaces. This is the same point we made in Donovan, where we explained how to identify the types of containers over which common authority appears to extend: “The rule has to be one of reason that assesses the critical circumstances indicating the presence or absence of a discrete expectation of privacy with respect to the particular object: whether it is secured, whether it is commonly used for preserving privacy, etc.” 746 F.2d at 902 (quoting United States v. Block, 590 F.2d 535, 541 n.8 (4th Cir. 1978)); see also United States v. Basinski, 226 F.3d 829, 834-35 (7th Cir. 2000) (using similar factors in analyzing apparent authority over closed containers).

The district court’s conclusion that Hicks had common authority over the living room generally does not answer the critical question here: Did she have authority over the shoebox?1 There is no evidence that Hicks either shared use of the shoebox with Peyton or had permission to do so, and the government does not argue that she had actual authority. Instead, the government invokes Donovan to suggest that Hicks had apparent authority, emphasizing three circumstances that suggest Peyton did not retain a privacy interest in the shoebox. The living room where he slept remained a common area, with a diminished expectation of privacy for things left there. Peyton took no special steps to hide or protect the shoebox. And a shoebox is not “the type of container that has historically been accorded the highest privacy expectations.” Appellee’s Br. 34.

Standing alone, these circumstances might suggest that the shoebox was not a private space and that it was reasonable for the police to believe that Hicks’s authority over the living room also encompassed the shoebox. But these were not the only circumstances the police were aware of. They knew that Hicks and Peyton both lived in the small apartment, and they were thus on notice that some spaces in the apartment might be used exclusively by Peyton. Indeed, the officer who opened the shoebox had been inside the apartment during the earlier warrant search and knew that Peyton’s bed was in the living room. But most critically, according to the sworn account of that very officer, Hicks told the police that Peyton kept his “personal property” in the area around the bed, where the shoebox was found. In light of this clear statement that there was an area of the room that was not hers, it was not reasonable for the police to believe that Hicks shared use of the closed shoebox. Hicks lacked apparent authority to consent to its search. Cf. United States v. James, 353 F.3d 606, 615 (8th Cir. 2003) (“It cannot be reasonable to rely on a certain theory of apparent authority, when the police themselves know what the consenting party’s actual authority is ….”).

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Nor is our conclusion that Hicks lacked authority undermined by United States v. Harrison, 679 F.2d 942 (D.C. Cir. 1982). In Harrison, the defendant’s wife discovered boxes of marijuana in an area of their basement that both used to store personal items. She called the police and asked them to remove the marijuana, which they did without a warrant. Id. at 945, 947. When the defendant sought to suppress the evidence, we held that, under the Supreme Court’s reasoning in Matlock, the wife’s common authority over the basement storage area gave her “full authority to release the boxes of marijuana into police custody.” Id. at 947. Harrison’s reasoning on this point is not entirely clear, in part because the opinion does not distinguish between actual and apparent authority, but Whitfield viewed Harrison as turning on the notion that it was reasonable for officers to assume that a husband and wife would share use of the storage area. See Whitfield, 939 F.2d at 1074-75 (citing Harrison). But just as a comparable assumption of mutual use was not warranted in Whitfield itself, so it is not warranted here. The closed shoebox was not located in a storage area shared by a husband and wife; it was next to the defendant’s bed, in an area his great-great-grandmother described as containing his “personal property.” Under these very different circumstances, it was not reasonable for the police to believe that Hicks had the necessary authority. Accordingly, the evidence recovered from the shoebox must be suppressed.