The resident of an apartment lacked apparent authority to consent to a search of a visitor’s backpack. The visitor had been arrested for a robbery and removed from the apartment, and the officers went back for his backpack left in a room. The court surveys the circuits and applies what it finds is the best test. While this involves a warrantless search in a home of another, the court seemingly puts some burden on the defendant yet the state still bears the burden in a warrantless search and here could not prove the apparent authority of the consenter over the property of another. State v. Jackson, 2016 Iowa Sup. LEXIS 52 (April 29, 2016), rev’g State v. Jackson, 867 N.W.2d 195 (Iowa App. 2015):
C. Determination of the Applicable Test. Under Rodriguez, a warrantless search of a closed container conducted pursuant to consent by a third party does not violate the Fourth Amendment so long as the person who consented had actual or apparent authority to consent to the search. See Rodriguez, 497 U.S. at 188-89, 110 S. Ct. at 2801, 111 L. Ed. 2d at 161 (quoting Terry, 392 U.S. at 21-22, 88 S. Ct. at 1880, 20 L. Ed. 2d at 906). The dispute among the federal circuit courts of appeal concerns the question of who bears the burden of proving third-party consent did or did not authorize a container search when the third party had actual authority to consent to a search of a premises but lacked actual authority to consent to a search of a container on that premises. The Sixth and Tenth Circuits have concluded the government bears the burden of demonstrating the officer inquired before searching a closed container if the circumstances would have alerted a reasonable officer that the person who consented to a search of the premises might not have had authority to consent to a search of a closed container. See Taylor, 600 F.3d at 681; Salinas-Cano, 959 F.2d at 864. The Second and Seventh Circuits have concluded the defendant bears the burden of adducing evidence to show the officer could not have reasonably relied on third-party consent so long as the third party had authority to consent to a search of the premises. See Snype, 441 F.3d at 136-37; Melgar, 227 F.3d at 1041. For the following reasons, we find the reasoning of the Sixth and Tenth Circuits to be more persuasive than the reasoning of the Second and Seventh Circuits.
First, we recognize a privacy interest in a closed container is not necessarily coextensive with a privacy interest in the surrounding location in which the container is located:
A privacy interest in a home itself need not be coextensive with a privacy interest in the contents or movements of everything situated inside the home. This has been recognized before in connection with third-party consent to searches. A homeowner’s consent to a search of the home may not be effective consent to a search of a closed object inside the home. Consent to search a container or a place is effective only when given by one with “common authority over or other sufficient relationship to the premises or effects sought to be inspected.”
United States v. Karo, 468 U.S. 705, 725, 104 S. Ct. 3296, 3308, 82 L. Ed. 2d 530, 548 (1984) (O’Connor, J., concurring) (quoting Matlock, 415 U.S. at 171, 94 S. Ct. at 993, 39 L. Ed. 2d at 250). As the Indiana Supreme Court has pointed out, the Melgar court did not acknowledge third-party consent to search a premises may implicate privacy interests in a closed container that are distinct from those the third party had in the premises. See Krise v. State, 746 N.E.2d 957, 967-68 (Ind. 2001). We reject the notion that a guest assumes the risk the government might unreasonably intrude upon a privacy interest in a closed container merely by bringing the container into the home of another person. See id. As the United States Supreme Court has noted, “what is at issue when a claim of apparent consent is raised is not whether the right to be free of searches has been waived, but whether the right to be free of unreasonable searches has been violated.” Rodriguez, 497 U.S. at 187, 110 S. Ct. at 2801, 111 L. Ed. 2d at 161.
Second, both the Supreme Court and this court have recognized the home is entitled to special status in the Fourth Amendment context. See Kyllo v. United States, 533 U.S. 27, 31, 121 S. Ct. 2038, 2041, 150 L. Ed. 2d 94, 100 (2001); State v. Ochoa, 792 N.W.2d 260, 276-77, 287 (Iowa 2010). It does not square with the Fourth Amendment’s recognition of the sanctity of the home to suggest bringing an object into a home might diminish, rather than enhance, a person’s privacy interest in that object. See Karo, 468 U.S. at 717, 104 S. Ct. at 3304, 82 L. Ed. 2d at 542 (holding warrantless electronic monitoring of a beeper inside a drum brought inside a home violated the Fourth Amendment).
Third, when a defendant moves to suppress evidence obtained when an officer conducted a warrantless search, the State bears the burden of proving the search did not violate the Fourth Amendment. Nitcher, 720 N.W.2d at 554. The Supreme Court has indicated this burden remains with the government in the context of third-party consent. Rodriguez, 497 U.S. at 181, 110 S. Ct. at 2797, 111 L. Ed. 2d at 156. Rodriguez made clear the government may meet its burden of proving the effectiveness of third-party consent by two possible means. Id. at 181, 188-89, 110 S. Ct. at 2798, 2801, 111 L. Ed. 2d at 156, 161. First, the government may demonstrate the person consenting to the search had actual authority to consent to a search of the location searched. Id. at 181, 110 S. Ct. at 2798, 111 L. Ed. 2d at 156. Second, the government may demonstrate the facts available to the officer when the officer conducted the search would have warranted a person of reasonable caution in the belief that the person consenting had authority to consent to a search of the location searched. Id. at 188-89, 110 S. Ct. at 2801, 111 L. Ed. 2d at 161. It would improperly reverse the burden of proof to require a defendant to disprove the effectiveness of the consent relied upon by officers who searched a closed container belonging to the defendant.
Finally, to flip the presumption of unreasonableness that generally applies to warrantless searches merely because a third party explicitly granted consent to a premises search would be inconsistent with Rodriguez. As the Supreme Court recognized in Rodriguez, even when a person makes an assertion he or she has authority to authorize a search, “the surrounding circumstances could conceivably be such that a reasonable person would doubt its truth and not act upon it without further inquiry.” Id. at 188, 110 S. Ct. at 2801, 111 L. Ed. 2d at 161.
The lesson of Rodriguez is that a warrantless search is not authorized when the circumstances would cause a reasonable officer to doubt whether the party consenting had authority to consent with respect to the location to be searched. The mere fact that an officer subjectively relied on third-party consent does not render that reliance reasonable. See id. at 188-89, 110 S. Ct. at 2801, 111 L. Ed. 2d at 161. Reliance on apparent authority to authorize a search is only reasonable when the authority of the person consenting is actually apparent with respect to the location to be searched. Thus, when the totality of the circumstances indicates a reasonable officer would have conducted further inquiry to determine whether the person who consented to a premises search had authority to consent to a search of a closed container, the government must demonstrate the officer did just that in order to establish the search of the container was reasonable.
The government bears the burden of proving a warrantless search was reasonable. Therefore, in determining whether a warrantless search of a container was reasonable based on the apparent authority of the consenting party, the relevant question is not whether the defendant has adduced enough evidence to prove an officer’s reliance on third-party consent was unreasonable. Rather, the question is whether the government has proved by a preponderance of the evidence that circumstances existing when the container was searched would have warranted a person of reasonable caution in the belief that the person who consented to a search of the premises also had authority over the container. Waller, 426 F.3d at 846 (quoting Rodriguez, 497 U.S. at 188, 110 S. Ct. at 2801, 111 L. Ed. 2d at 161).
The government cannot demonstrate an officer reasonably relied on apparent authority to authorize a search if the officer proceeded without making further inquiry when faced with an ambiguity concerning the question of whether the container to be searched was subject to ownership or mutual use by the consenting party. See id. at 846-47. When an officer faced with such ambiguity searches a closed container without a warrant and without inquiring enough to clarify whether the person who consented to a premises search had authority to consent to a search of the container, the search is unlawful. See Rodriguez, 497 U.S. at 188-89, 110 S. Ct. at 2801, 111 L. Ed. 2d at 161; Waller, 426 F.3d at 846.
D. Analysis. As the district court noted, the State presented no evidence to indicate Olson had actual authority to consent to a search of Jackson’s backpack. In addition, the State conceded Jackson maintained control over his backpack as a guest in Olson’s bedroom. Thus, we must determine whether Olson had apparent authority to consent to the search of Jackson’s backpack.
The first step in our analysis is to determine whether the State proved by a preponderance of the evidence the facts and circumstances known to the officers when Jackson’s backpack was searched would have warranted a person of reasonable caution in the belief that Olson had authority over the backpack. If so, Officer Smithey reasonably relied on apparent authority to authorize the warrantless search without making further inquiry. To answer this question, we must consider whether a reasonable officer would have found Olson’s authority to consent to a search of the backpack ambiguous based on the facts and circumstances known to the officers. See Waller, 426 F.3d at 847. ….
