The Property-in-Property Problem in Fourth Amendment Law

A tale of two new cases on your constitutional rights when you leave your backpack with your drugs in someone else's car.

|The Volokh Conspiracy |

A common problem in Fourth Amendment law that Supreme Court cases leave surprisingly unresolved is what you might call the "property-in-property" problem.  It runs like this.  Say a person has evidence of crime A that he puts inside his own bag or backpack or other container B.  Our person then puts B inside a house, car, or other place C that they don't own or otherwise lawfully control.  The police search place C, and they find container B.  The police then search container B and find evidence A. That leads to charges, and a Fourth Amendment dispute over the admissibility of evidence A.

The property-in-property problem raises two interesting legal questions.  First, if the person is charged, does he have standing to challenge the search of his own property B that ultimately revealed evidence A?  And second, can the owner of place C consent to a search of property B to find A?

Two recent decisions on this issue point in different directions, and I think it's interesting to see if we can reconcile them. Let's take the two issues in turn.

I.  The Standing Question

The standing issue breaks down into two steps.  First, who has standing to challenge the search of place C on the way to finding B? And second, who has standing to challenge the search of B, inside C, on the way to finding A?

There is a lot of Supreme Court caselaw on the first step, standing to challenge the search of C.  That is the subject of cases like Rakas v. Illinois, which involved a search of a car to find a gun under the passenger seat, and the recent ruling in Byrd v. United States, on rights in rental cars when the driver is not on the contract.  The standard under Rakas and Byrd isn't particularly clear, but at least we have some Supreme Court decisions to frame the answers.  (And note that while Rakas frowns on the use of the word "standing" to describe whether a person's own Fourth Amendment rights were at issue in a search, Byrd changes course and allows it.  I'll use the term here, as I think it's helpful.)

On the other hand, there is surprisingly little Supreme Court caselaw on the second step, standing to search property B for evidence A.

You can imagine two different approaches, as well as some middle ground between them.  On one end, you might argue that the rules for place C control.  Property B is in place C, after all, so maybe standing to search B is the same as standing to search C.

On the other end, maybe standing to search B is entirely separate.  After all, under the problem, property B is the person's own stuff. Should the mere fact that the person had no standing in place C mean that they lose standing to challenge the search of their stuff B that stored evidence A?

Two recent cases provide some interesting answers that point in different directions.

First, consider yesterday's decision in United States v. Sawyer from the Seventh Circuit.  Sawyer broke into an empty home and left his backpack in the basement.  The police searched the backpack and found guns.  Did Sawyer have standing to challenge the search of his backpack left in the home?

No, the Seventh Circuit ruled in an opinion by Judge Amy St. Eve, relying on Footnote 12 in Rakas about the rights of burglars.  Sawyer and the cases it relies on treat the standing rules for the search of property B as equivalent to the standing rules for place C.  Here's the analysis:

A privacy interest is not reasonable when one's presence in a place is "wrongful." Rakas, 439 U.S. at 143, n.12. (citation omitted). Here, the officers responded to a report of a residential break-in and learned from M.G. that the home should be empty and unoccupied. Sawyer and three others then emerged from the home. M.G. requested a search of the home during which the officers discovered and searched the backpack. Sawyer does not assert that his—and therefore his backpack's—presence was lawful or offer any basis for his privacy interest in the home. Thus, like "[a] burglar plying his trade in a summer cabin during the off season," Sawyer lacked a legitimate expectation of privacy to contest the search within the home because any expectation he had was not one that society is prepared to recognize as reasonable. Id. (citation omitted); United States v. Curlin, 638 F.3d 562, 565 (7th Cir. 2011).

This determination aligns with the decisions of other circuits that have concluded that a trespasser's wrongful presence forestalls a Fourth Amendment challenge. See United States v. Battle, 637 F.3d 44, 49 (1st Cir. 2011) (defendant who overstayed his visit became a trespasser with no "legally sufficient interest in the apartment to mount a Fourth Amendment challenge"); United States v. Struckman, 603 F.3d 731, 747 (9th Cir. 2010) (trespassers cannot claim the protections of the Fourth Amendment); United States v. Hunyady, 409 F.3d 297, 303 (6th Cir. 2005) (trespasser who had tenuous connection with otherwise empty house had no legitimate expectation of privacy to contest its search). Because Sawyer has not shown a legitimate privacy interest in the home where the backpack was found, he also cannot contest the search of his effects that he left within the home. See United States v. Mendoza, 438 F.3d 792, 795 (7th Cir. 2006); see also United States v. Gale, 136 F.3d 192, 194–95 (D.C. Cir. 1998) (defendant wrongfully occupying apartment lacked legitimate expectation of privacy to contest search of box containing drugs in apartment); United States v. Jackson, 585 F.2d 653, 658 (4th Cir. 1978) (defendant who placed bag in vacant, otherwise empty home had no legitimate reasonable expectation that his effects would remain undisturbed).

Contrast Sawyer with the Michigan Supreme Court's decision from this May in People v. Mead.  An officer pulled over a car for expired tags and found that the driver of the car, Taylor, had no license.  During the stop, a passenger in the car, Mead, left his backpack inside. Taylor and Mead had just met, and Taylor agreed to give Mead a ride because they were going in the same direction.  The police seacrhed the backpack and found drugs.

Mead did not claim that he had standing to challenge the search of the car under Rakas.  Instead, he challenged only the search of his backpack.  But did Mead have standing to challenge that search—effectively challenging the discovery of evidence A based on the search of property B, even if he could not challenge the search of place C that held property B?

Yes, the court ruled in a decision by Chief Justice McCormack:

"[O]ne who owns or lawfully possesses or controls property will in all likelihood have a legitimate expectation of privacy by virtue of [the] right to exclude." Rakas, 439 US at 144 n 12; see also Byrd, 584 US at ___; 138 S Ct at 1528. And a passenger's personal property is not subsumed by the vehicle that carries it for Fourth Amendment purposes. See, e.g., United States v Welch, 4 F3d 761, 764 (CA 9, 1993) ("The shared control of 'host' property does not serve to forfeit the expectation of privacy in containers within that property."), citing United States v Karo, 468 US 705, 725-727; 104 S Ct 3296; 82 L Ed 2d 530 (1984) (O'Connor, J., concurring). A person can get in a car without leaving his Fourth Amendment rights at the curb. Thus, although the defendant had no (and claimed no) legitimate expectation of privacy in the interior of Taylor's vehicle, he had a legitimate expectation of privacy in his backpack that society is willing to recognize as reasonable.

Can we reconcile Sawyer and Mead?

I think so, in the following way.  We can say a person might have three different relationships with a place C that determine the person's Fourth Amendment rights in property brought there:

  • The person might have a sufficient legitimate connection with C to have standing in C.  In that case, he can challenge the search of C to find his property B as well as the search of his property B to find evidence A.
  • The person might not have enough legitimate connection with C to have standing in C, but enough of a legitimate connection with C to have standing to challenge the search of B to find evidence A.  This is Mead.  Mead had some legitimate connection to the car, in that the driver gave him a ride.  It's not much of a connection, but it's something, so Mead lacks standing to challenge the search of the car but has standing to challenge the search of his backpack he placed in the car.
  • The person might not have any legitimate connection at all with C, which means he lacks standing to search C and also forfeits his standing to challenge the search of his property B.  This is Sawyer.  Sawyer was a trespasser, so he loses all Fourth Amendment rights in what he brought into the house.

I think this is a plausible set of rules.  But it also sets up an interesting tiered answer to the property-in-property problem that I'm not sure has been identified before.

II.  The Third-Party Consent Question

Now turn to the third-party consent question.  Can the owner of C lawfully consent to a search of property B to find evidence A?  In the language of Fourth Amendment doctrine, does the owner of C have "common authority" or "apparent authority" to consent to a search of B because it was placed inside his place C?

Again, Sawyer and Mead point in different directions.   Let me tell you a bit more of the relevant facts.

In Sawyer, a co-owner of the house known only as "M.G.," told the police about the trespasser and asked the police to search.  The Seventh Circuit held that, even assuming that Sawyer had standing, the co-owner's third-party consent was valid and the search was therefore reasonable under the consent exception:

Moreover, the officers' search of the backpack did not violate the Fourth Amendment because M.G. consented to the search of his home, which included the backpack. An otherwise unreasonable search is permissible when a third party with common control over the searched premises consents, or when someone with apparent authority to consent does so. United States v. Melgar, 227 F.3d 1038, 1041 (7th Cir. 2000). A general consent to search the premises can include consent to search containers within it if those containers would reasonably hold the expressed object of the search. Fla. v. Jimeno, 500 U.S. 248, 251 (1991). Here, M.G. told the officers that he coowned the house, that it was a rental property with no current tenants, and that no one—and therefore, no personal property—should be inside. When he saw a figure inside the house, he commanded that any occupants come outside and asked the officers to "go inside and check my house." He did not limit the scope of the search. It was objectively reasonable, then, for the officers to conclude that M.G.'s general consent to search the house included consent to search a container, such as the backpack, that could contain evidence relating to the break-in. See Jimeno, 500 U.S. at 251.

Contrast that with Mead. In Mead, the driver Taylor consented to a search of Mead's backpack.  The Michigan Supreme Court held that Taylor lacked common authority over Mead's backpack:

An objectively reasonable police officer would not have believed that Taylor had actual or apparent authority over defendant's backpack. [The officer] testified that he believed the backpack belonged to the defendant. No evidence suggested that Taylor had mutual use of the backpack. A backpack is used to transport personal items, which suggests individual ownership rather than common ownership. See Utah v Harding, 282 P3d 31, 38; 2011 UT 78 (2011). Burkart knew at the time of the search that Taylor and the defendant were near strangers. Taylor told Burkart that she had met the defendant earlier that night and that she was dropping him off somewhere on her way, and the defendant independently confirmed that.

Given this brief relationship, a reasonable officer could not conclude that Taylor had mutual use of the defendant's backpack. Taylor was like a rideshare driver who has only short-term contact with passengers—an objectively reasonable officer would not believe (absent unusual circumstances) that an Uber driver could consent to the search of his passenger's purse, for example. And since Taylor didn't have the apparent authority to consent to the search of the backpack, the scope of her consent is irrelevant. By definition, the scope of a person's consent cannot exceed her apparent authority to give that consent. See Rodriguez, 497 US at 188 (cautioning that even when a third party explicitly consents to the search of a particular place, it is unreasonable to act on that consent if "the surrounding circumstances could conceivably be such that a reasonable person would doubt its truth and not act upon it without further inquiry"). Because Taylor did not have apparent common authority over the backpack, the search of the backpack was not based on valid consent[.]

The consenting person in Mead was not the owner of the car, so the two examples aren't mirror images.  But note the conceptual difference between the consent analysis in Sawyer and Mead.  In both cases, the defendant put his backpack in someone else's place.  In Sawyer, the court looked to the consent rights of the owner of the place in general.  In Mead, by contrast, the court looked to the specific relationship between the consenting individual and the backpack.  In the first, the consent powers to search the backpack were answered by the rights structure in the place. In the second, the consent powers were treated as a distinct question.

III.  Conclusion

I asked a property-in-property problem on my spring Criminal Procedure exam.  As you might guess, the answers were all over the map.  And I don't have a grand theory to answer this problem myself, at least yet.  But it seems to me that this is an important set of questions worth focusing on given the range of possible answers courts might plausibly provide.

As always, stay tuned.

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  1. The trespasser case looks more to me like a case of abandonment. The backpack with guns was apparently abandoned property within the house, which the owner could have claimed as salvage and kept or disposed of as they saw fit. Granting the police permission to search something they’ve salvaged clearly falls within that right.

    The car case is the opposite, there was no abandonment, nor even a bailment, and the owner kept possession until he was forcibly separated from it by the police. So his property was seized when they were separated, so the question then wasn’t “could the driver who had no relationship with the bag give consent?” But rather “can the police who temporarily seized the bag (and the car it was in) grant themselves consent, or get it from someone without any property interest in it at all?”

    The easier way to resolve these boils down to this: but for police intervention, who keeps the property? An abandoned bag in a house the homeowner keeps. A bag carried by a person that person keeps.

    But what if the bag is accidentally left in the car? Then it becomes abandoned property and the local default rules apply (presumably, it either reverts to the car owner, or she has a duty to submit it to the police). What if the trespasser claims the bag is his own? Then (assuming there’s no reason to doubt it) it’s not abandoned property and the homeowner can’t consent to a search of it.

    Hypothetical: you rent a safe deposit box at a bank, and keep a small safe inside it. If the police request, can they search the contents of the box? Yes, because the bank can consent. Can they search the contents of your separate safe? No, because the bank has no property interest in your safe. But what if they’ve lost your information and don’t know who owns the safe? Yes, because the ownership is unknown so it’s been effectively abandoned (recognizing there may be local default rules with safe deposit boxes specifically, I only address the property right default rules).

    1. In the first case, the defendant kept possession of the backpack until the police arrived and ordered him to leave the apartment. In the second case, the defendant kept possession of the backpack until the police arrived and ordered him to leave the car. I’m not sure I see how the situations are distinguishable for an abandonment analysis.

    2. But what if the bag is accidentally left in the car? Then it becomes abandoned property and the local default rules apply (presumably, it either reverts to the car owner, or she has a duty to submit it to the police).

      No, wait a minute. This is not my area of expertise so I await Orin’s correction if I’m mistaken, but my understanding is that abandonment requires an affirmative choice. Accidentally leaving something somewhere does not constitute abandoning it.

      Hypothetical: you rent a safe deposit box at a bank, and keep a small safe inside it. If the police request, can they search the contents of the box? Yes, because the bank can consent.

      They can?

  2. How does your theory square with this hypothetical ?

    1. Burglar X breaks into Householder Y’s home and steals a backpack B which contains evidence A.
    2. Burglar X takes the backpack to his Home C.
    3. A witness alerts the cops to the burglary and they arrive just in time to see Burglar X making off with backpack B
    4. The cops then follow Burglar X to Home C and search it, and with Burglar X’s permission, backpack B, thereby discovering evidence A

    Doesn’t seem to me that Householder Y has any connection with Home C, but it hardly seems fair that the cops can get evidence A in those circumstances.

  3. “…Burkart knew at the time of the search that Taylor and the defendant were near strangers…”

    Poor writing by the Mich Sup Ct. Should have been “were near-strangers…”. As it’s written (ie, without the hyphen), it sounds like Taylor and defendant were nearby to some strangers. And in a case involving strangers and when they can and cannot give permission to search, it’s actually a relevant bit of pedantry from me. (For once!)

  4. The backpack search seems more about reasonableness than about standing in my opinion. I realize that’s not what the court might have held there but it seems a strange way to proceed.

    In particular, making the question of searching the bag one of standing seems particularly odd. For, imagine, that the police are called to a store being robbed and, like Sawyer, discover the apparent thief with a backpack. Only this time the thief was robbing a store that one of his parents was a partner in and, unbeknownst to him, had just transferred his interest to the store to the thief. All the sudden the thief has a legitimate connection to the store and can latter challenge the evidence as excludable.

    I feel the intuition is that the backpack is obvious evidence relevant to the robbery (does it contain stolen goods) and that it’s the really strong sense that it’s obviously relevant (not maybe relevant as in a case where a roommate is accused of stealing) that is doing the work here.

    1. Note in the example the interest would only be partial so the thief would still be stealing from their partners.

  5. Man, if the courts and law professors can’t come up with a clear standard, then how are street cops supposed to know what to do?

    1. They don’t have to. That’s why the good-faith exception to the exclusionary rule exists. As long as the cop acts in line with their training and common knowledge about constitutional rights (not edge cases like this), they’re fine.

    2. Rule of thumb: If the street cop doesn’t have a clear standard that tells him what to do, then GET A WARRANT.

  6. Of course, if the passenger had kept the backpack on, he and his dog would have been shot, and the point moot.

  7. what about if B was a quest at A’s house and had his own room. can A consent to search B’s backpack in that room? what if the backpack was in the garage?

    1. Let’s not use “quest” in a discussion of searches, please. Con-fu-sing.

  8. How about this for a general rule to cover search of nested containers.

    The owner of container A can consent to a search of container A. If the police find container B, They can seize container B, but they need a warrant to open and search inside container B.

    Why? Because by seizing container B they have eliminated any and all conditions that might make a warrant-less search of B reasonable.

    1. If the owner of container A purports to consent to a search of container B, then the owner of A has claimed ownership of container B and therefore any evidence of criminal acts found in container B can only be used against the owner of container A.

    2. I’m seeing Josh Blackman creating a final exam question involving a six-level Russian nesting doll kept in a safe-deposit box, with each family member owning one of the nesting dolls, with the smallest nesting doll (owned by the husband of the family granddaughter, with the husband having been in a coma in the hospital the last six months after being poisoned by his wife) containing a key to a lockbox filled with valuable bearer bond notes (with the lockbox being buried in an open field, a la Shawshank Redemption, albeit in a part of the field that happens to be directly underneath the tent of someone who has been openly squatting on the land for the last seven years). Spot the issues.

      1. That scenario doesn’t just have ‘sues, it has big floppy clown ‘sues. 🙂

  9. I thought the “roommate consent” case law would make a showing in this discussion, somehow. Can one roommate’s locked room be similar to Property B, where the house or condo/apartment in general is similar to Property C?

  10. I wonder whether being unlawfully present should be sufficient to eliminate all privacy interest. Consider the case of a person lost in the mountains in winter who comes across a locked cabin. He breaks into the cabin in order to survive. He does no damage beyond that necessary to gain access and converts to his own use only food and firewood for his present needs. He is in the cabin unlawfully, but with justification. Should he be considered to have abandoned his privacy interest in his backpack?

  11. I hope good people devote time and effort to addressing these important issues, and generally defer to Prof. Kerr in this context (except where he plainly is at odds with libertarianism consequent to vestigial conservatism), but my default position until qualified immunity is extinguished is ‘get a warrant.’ Indirect consent, implied authority, construed abandonment, reasonably informed officer, and the like are irrelevant to my analysis until qualified immunity has been eliminated.

    It wouldn’t hurt to start attracting a better class of people to law enforcement, either. Does law enforcement work generate lousy people, or merely attract them?

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