UT: Does consent to search a vehicle apply to all the passengers’ bags? Probably not

The driver’s consent to search the car likely does not apply to the other occupant’s stuff, and the case is remanded for further fact finding. State v. Harding, 2011 UT 78, 697 Utah Adv. Rep. 54, 282 P.3d 31 (2011), on cert. from State v. Harding, 2010 UT App 8, 223 P.3d 1148 (2010):

¶1 The sole question before us is whether a police officer may search two backpacks belonging to a passenger in an automobile after receiving only the driver’s consent to search the vehicle. The district court’s factual findings are not sufficiently particularized for us to conclusively make this determination. We therefore remand with instructions for the district court to make additional factual findings.

¶16 Courts applying Rodriguez‘s apparent authority doctrine are generally in agreement that an officer’s search of a passenger’s belongings based only on a driver’s consent is unreasonable where the facts clearly indicate the driver has no authority over the items to be searched. For example, courts are unanimous in holding that it is unreasonable for an officer to search a female passenger’s purse after obtaining only the consent of a male driver because it is unreasonable to believe that the man has authority over the woman’s purse. See United States v. Welch, 4 F.3d 761, 765 (9th Cir. 1993); State v. Friedel, 714 N.E.2d 1231, 1240-41 (Ind. Ct. App. 1999); State v. Caniglia, 1 Neb. Ct. App. 730, 510 N.W.2d 372, 374 (Neb. Ct. App. 1993); State v. Zachodni, 466 N.W.2d 624, 628 (S.D. 1991), abrogated on other grounds by State v. Akuba, 2004 SD 94, 686 N.W. 2d 406 (S.D. 2004). And a Florida court held that it was unreasonable for an officer to search a passenger’s fanny pack based only on the driver’s consent where the officer had observed the passenger sitting in the car with the fanny pack on her lap. Brown v. State, 789 So. 2d 1021, 1021-22 (Fla. Dist. Ct. App. 2001). Similarly, a federal court held that it was unreasonable for an officer to search a passenger’s briefcase in the trunk of a car without obtaining the passenger’s consent after the driver informed the officer the briefcase belonged to the passenger. United States v. Infante-Ruiz, 13 F.3d 498, 505 (1st Cir. 1994).

. . .

¶33 In this case, similar to James, Frank, and Norris, there were four passengers and several bags in the vehicle. In such a situation, the probability that one or more of the bags belonged to one of the passengers is extremely high. Thus, as in James, Frank, and Norris, it likely would have been unreasonable for Officer Westerman to believe that all of the bags in the car belonged to the driver.

¶34 The State makes much of the fact that the backpacks did not contain labels identifying Ms. Harding as the owner. It is true that some courts have emphasized such evidence, see, e.g., Hammons, 152 F.3d 1025, 1027-28 (8th Cir. 1998), and we agree that it is a fact that should be considered. But we also believe the value of such information is limited in gauging the reasonableness of an officer’s actions because it is hardly commonplace for people to place labels on the exterior of their belongings.