Apparent authority for third party consent requires the court to independently evaluate the consent’s authority over containers on the premises separate from the premises. Authority over containers may be obviously or apparently limited. United States v. Smairat, 2007 U.S. Dist. LEXIS 57769 (N.D. Ill. August 8, 2007):
Courts must independently consider whether a third party has the authority to consent to a search of a residence and whether the third party has authority to consent to particular containers within that residence. Groves, 470 F.3d at 320; see also United States v. Karo, 468 U.S. 705, 725-26, 104 S. Ct. 3296, 82 L. Ed. 2d 530 (1984). Consent to search a room is not necessarily sufficient for officers to search closed containers within that room. United States v. Rodriguez, 888 F.2d 519, 523 (7th Cir. 1989). The officers must consider whether the scope of the consent can be reasonably understood to extend to particular containers, Florida v. Jimeno, 500 U.S. 248, 252, 111 S. Ct. 1801, 114 L. Ed. 2d. 297 (1991) (distinguishing between the reasonableness of searching a paper bag pursuant to a general consent to search for drugs in a car and the unreasonableness of searching a locked briefcase pursuant to such a consent), and also whether it is reasonable to believe that the party consenting to the search has authority over those containers. Ruiz, 428 F.3d at 882.
In this situation, “apparent authority turns on the government’s knowledge of the third party’s use of, control over, and access to the container to be searched, because these characteristics are particularly probative of whether the individual has authority over the property.” United States v. Basinski, 226 F.3d 829, 834 (7th Cir. 2000) (citations omitted).
. . .
Because the court has found that Michil did not have apparent authority over the boxes in the basement, it follows that he also did not have apparent authority to consent to a search of the drawers or of containers that have a higher indicia of privacy, including the filing cabinets, the locked safe, and closed boxes in Nabil’s and Barbara’s closets. The two computers found in the basement fall into the same category. Moving on, the agents had no information regarding Michil’s authority over the Jeep and its contents, the computer found in the office, and the additional computer. Seizing these items based on Michil’s consent without any further inquiry was also unreasonable. Additionally, because the court has no information about where the seized keys were found, it must also conclude that their seizure based on Michil’s consent was not reasonable.
This leaves only the $260,000, which was found in the basement in a Crock Pot. Unlike closed boxes, whose privacy generally depends on their circumstances, a Crock Pot is the sort of container that most people assume is not private. It is used for cooking, not generally for storing private items, and the agents could properly assume that when they asked for consent to search the home for drugs, they could open a Crock Pot without inquiring about its ownership.
First Circuit holds DNA collection constitutional, but does so on the “totality of the circumstances” standard rather than special needs as all other circuits did. United States v. Weikert, 504 F.3d 1 (1st Cir. 2007):
This case presents a question of first impression in this circuit: is it a violation of the Fourth Amendment’s prohibition on unreasonable searches and seizures to require an individual on supervised release to provide a blood sample for purposes of creating a DNA profile and entering it into a centralized database? Agreeing with the eleven other circuits that have held similarly, we hold that it is not. In doing so, we interpret the Supreme Court’s decision in Samson v. California, 126 S. Ct. 2193 (2006), to require that we join the majority of the circuits in applying a “totality of the circumstances” approach to the issues in this case, rather than the “special needs” analysis used by the minority of circuits.
However, we also impose an important limitation on our holding. Because the appellant is currently on supervised release and will remain so until 2009, we do not resolve the question of whether it is also constitutional to retain the DNA profile in the database after he is no longer on supervised release. Mindful of the well-established principle that constitutional cases should be decided as narrowly as possible and the rapid pace of technological development in the area of DNA analysis, we reserve judgment on that issue for another day.
Comment: This outcome is different, but it does not matter in the overall scheme of this issue because the Supreme Court is not going to grant cert. It does, however, show the application of the totality of the circumstances test.
Plaintiff filed a civil rights claim against an officer who caused an injury while moving her broken down car. The car picked up speed while rolling and dragged the plaintiff, injuring her. The jury found for the plaintiff on an “undefined civil rights claim” and attempted to award $0, but the judge sent the jury back and they returned a verdict of $1. Because she prevailed on one of five claims, the district court reduced the attorney’s fees 73% to $12,956. On appeal, the First Circuit found no civil rights claim and reversed. The officer’s order that she push her car was not a Fourth Amendment seizure. Lockhart-Bembery v. Sauro, 498 F.3d 69 (1st Cir. 2007).*
