NY4: Common authority does not extend to personal duffle bag

Defendant’s girlfriend’s mother lacked apparent authority to consent to the search of the defendant’s duffle bag in her house when he was staying there. People v Holmes, 2011 NY Slip Op 8075, 89 A.D.3d 1491, 932 N.Y.S.2d 270 (4th Dept. 2011):

Upon remittitur, we agree with defendant that the weapon and his statements to the police must be suppressed. The mother of defendant’s girlfriend did not have actual or apparent authority to consent to the search of the duffel bag (see generally People v Gonzalez, 88 NY2d 289, 293). The People presented no evidence that the mother “shared common authority’ over defendant’s duffel bag, based upon mutual use or joint access and control” (id. at 294). The warrantless seizure of the weapon therefore was improper (see People v Coston, 271 AD2d 694, lv denied 95 NY2d 833, 962; cf. People v Kelly, 58 AD3d 868, lv denied 12 NY3d 818). We further agree with defendant that his statements to the police must be suppressed as fruit of the poisonous tree (see People v Christianson, 57 AD3d 1385, 1388; People v James, 27 AD3d 1089, 1090-1091, lv denied 6 NY3d 895).

Officers had information from a CI that defendant was in the bathroom doing drugs. When she came out, she seemed under the influence. She left her backpack on the trunk of a car when talking to the officer and then was arrested. There was probable cause to believe evidence was in the backpack, so it was more than just a search incident. Agee v. Commonwealth, 2011 Ky. App. LEXIS 224 (November 10, 2011).*