Defendant had a reasonable expectation of privacy in a closed bag while he was visiting another, and she had no apparent authority to consent to a search of it

Defendant had an expectation of privacy in a closed bag hidden in the closet of a house he was visiting. The owner had apparent authority over common areas to consent to a search, but not the bag. By closing the bag, the defendant exhibited a reasonable expectation of privacy from government intrusion. United States v. Childs, 2008 U.S. Dist. LEXIS 27525 (D. Mass. April 4, 2008):

In this case, the pertinent inquiry is whether Tubbs had mutual use of and joint access to the bag. This case is similar to United States v. Botchway, where Judge Saylor found that a third party lacked actual authority to consent to a search of defendant’s locked, soft-sided briefcase that was in the trunk of a car the third party was riding in. The third party in Botchway lacked authority because “the briefcase and its contents belonged to [the defendant],” there was “no evidence that [the defendant] shared access or control over the briefcase with any other person,” and the defendant “did not abandon the briefcase, entrust it to another, or otherwise relinquish authority over it in any respect.” Id. at 170.

Analogously, in this case, the bag belonged to Childs, there was no evidence he shared control of the bag with Tubbs, and Childs did not abandon the briefcase, entrust it to another, or otherwise relinquish authority over it. These facts satisfy me that Tubbs lacked actual authority to consent to the search. United States v. Waller, 426 F.3d at 845-46. Additionally, Tubbs did not know what Childs kept in the bag, ask him what he kept in the bag, or take any other affirmative steps to determine the contents of the bag. When pressed by my questioning, Tubbs suggested that she thought she had authority to look in the bag if she wanted to. I find this post-hoc assertion of authority to be unpersuasive in light of her earlier testimony. When I originally asked her the same question, she testified that she thought she had the right to look in the bag because “had [she] looked in it, we probably wouldn’t be here today.”

This case also bears resemblances to a situation Justice O’Connor described in United States v. Karo, 468 U.S. 705, 726, 104 S. Ct. 3296, 82 L. Ed. 2d 530 (1984) (O’Connor, J., concurring). She observed that when a “guest in a private home has a private container to which the homeowner has no right of access[, t]he homeowner who permits entry into his home of such a container effectively surrenders a segment of the privacy of his home to the privacy of the owner of the container.” Id. In these situations, “the homeowner … lacks the power to give effective consent to the search of the closed container.” Id. While her testimony was not entirely consistent regarding Childs and the bag, Tubbs did consistently state that she gave Childs permission to store his bag in her daughter’s closet. This too suggests that Tubbs did not have joint access to or mutual use of the bag. Because Tubbs did not have mutual use of or joint access to the bag for most purposes, she lacked actual authority to consent to the search.