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.
