CA1: Mere fact friend had possession of def’s bags didn’t show actual or apparent authority to consent

Defendant stored bags with a friend, and he ended up in jail. There was no actual or apparent authority shown for her to consent to search of the bags. The government carries the burden on both, and it fails. The government even relied on jail calls from defendant to the friend, and they didn’t support its conclusion, either. Conviction reversed. United States v. Moran, 2019 U.S. App. LEXIS 35574 (1st Cir. Nov. 27, 2019):

There is no evidence that, when Moran left his bags at Alysha’s, he told her that she could open the bags and gain access to what was inside. And there is no evidence that one could see through the bags to the contents. In addition, the fact that Alysha had access to the bags at issue by virtue of their presence in her storage unit does not, on its own, establish her mutual use of whatever they contained. See United States v. James, 353 F.3d 606, 614 (8th Cir. 2003) (noting that “one does not cede dominion over an item to another just by putting [another] in possession”). And while the record does show that Moran had authorized Alysha to move the bags at issue without giving her explicit direction as to what she should do with them, that fact also fails to establish that she had mutual use of the contents of those closed containers, notwithstanding that they were in her storage unit. See United States v. Basinski, 226 F.3d 829, 834 (7th Cir. 2000) (finding that a third party did not have authority to consent to a search of a briefcase when the defendant gave the third party the briefcase and asked him to destroy the case and its contents).