CA9: Dist.Ct. erred in finding apparent authority over a briefcase that the consenter had no interest in when owner was objecting

The district court erred in granting summary judgment to defendants on a third party consent issue. There was no reason to believe that the person they sought consent from had an equal or superior control over the briefcase at issue, including not having the combination to it. Plaintiff didn’t and didn’t consent. Willis v. Mullins, 2016 U.S. App. LEXIS 13921 (9th Cir. Aug. 1, 2016):

Under Impink [United States v. Impink, 728 F.2d 1228 (9th Cir. 1984)], a reasonable jury could conclude that Kathleen Moye’s consent was ineffective, and that defendants’ subsequent search of Willis’ briefcase violated clearly established Fourth Amendment law. Considering the evidence in the light most favorable to Willis, a reasonable jury could conclude that Willis had superior access to the briefcase. See id. at 1233. Despite telling defendants that she had placed drug paraphernalia in Willis’ briefcase, and responding “I guess so” when asked if Officer Silvius could retrieve the paraphernalia, Moye did not provide defendants with the combination to unlock the briefcase. Willis, however, knew the combination and refused to provide it to defendants when asked. In addition to Moye’s limited access, a reasonable jury could also conclude that Willis was physically present at the time Moye gave consent, and that he actively opposed the search of his briefcase. See id. at 1233-34. Because a reasonable jury could determine that Willis was present at the time of the search, actively opposed the search, and had superior control over the briefcase, we are bound by Impink to reverse the district court’s order granting summary judgment to defendants on this claim.