D.Minn.: Consent to seizure wouldn’t be valid, either

The USMJ’s recommendation that the court suppress search and seizure of four bags based on somebody else’s consent is sustained. The government’s argument that a seizure first was valid isn’t sustained either. United States v. Hollister, 2012 U.S. Dist. LEXIS 131098 (D. Minn. September 14, 2012):

Judge Leung recommends suppressing the contents of the bags because “officers could not reasonably assume that L.M. had authority to consent to the opening of the four bags.” R&R at 35. In its objection, the government argues that L.M. had authority to consent to the seizure of the bags, relying mainly on United States v. Wiest, 596 F.3d 906 (8th Cir. 2010). But whether L.M. had authority to consent to the seizure of the bags is not the issue; the issue is whether L.M. had authority to consent to a search of the bags.4 As the Eighth Circuit has recently observed, courts must be careful to distinguish between searches and seizures:

“Although our Fourth Amendment cases sometimes refer indiscriminately to searches and seizures, there are important differences between the two …. The Amendment protects two different interests of the citizen — the interest in retaining possession of property and the interest in maintaining personal privacy. A seizure threatens the former, a search the latter. As a matter of timing, a seizure is usually preceded by a search, but when a container is involved the converse is often true. Significantly, the two protected interests are not always present to the same extent; for example, the seizure of a locked suitcase does not necessarily compromise the secrecy of its contents, and the search of a stopped vehicle does not necessarily deprive its owner of possession.”

United States v. Clutter, 674 F.3d 980, 984 (8th Cir. 2012) (quoting Texas v. Brown, 460 U.S. 730, 747-48 (1983) (Stevens, J., concurring)).