Mark E. Jones
Attorneys for Appellee
Jeffrey A. Modisett
Attorney General of Indiana
James A. Garrard
Deputy Attorney General
Appellant (Defendant below),
STATE OF INDIANA, Appellee (Plaintiff below ).
) Supreme Court No.
) Court of Appeals
May 9, 2001
Officer Rick Underhill arrived at the scene to assist in searching the home.
While searching the bathroom, Officer Underhill noticed a purse lying on top
of the commode. Without the consent of either Tungate or Krise, Officer
Underhill opened the purse and found a small leather pouch. Inside the
pouch, he discovered a small wooden case holding marijuana and a plastic bag
ntaining white powder, later identified as methamphetamine. Officer Underhill also found Krises
drivers license inside the purse. Krise never consented to the search of
The State charged Krise with Possession of a Schedule II Controlled Substance within 1,000 Feet of a Public Park, a Class C felony. See footnote Krise filed a motion to suppress all evidence obtained during the search of her home. The trial court denied the motion on January 14, 1998. A jury convicted Krise as charged on June 2, 1998. The trial court sentenced Krise to the presumptive sentence of four years incarceration, with two years suspended to probation.
Krise appealed her conviction and the denial of her motion to suppress all
evidence. The Court of Appeals affirmed the trial courts judgment, finding that
a third-partys consent to a wa
rrantless search of a home includes permission to
search all containers, and in particular, a purse located inside the home.
See Krise v. State, 718 N.E.2d 1136, 1142 (Ind. Ct. App. 1999).
Judge Friedlander pointed out in dissent that this decision conflicts with another recent
decision of the Court of Appeals. Id. at 1145 (Friedlander, J. dissenting)
(citing State v. Friedel, 714 N.E.2d 1231 (Ind. Ct. App. 1999), transfer not
The twists and turns of Fourth Amendment law are often difficult to negotiate,
with variations in fact patterns often determinative of the outcome of cases involving
warrantless searches. Here we perceive four variables in the facts that require
particular attention. First, as already noted, the wa
rrantless search was made pursuant
to consent (rather than probable cause as in many reported cases). Second, the
search was of a home (rather than a vehicle). Third, the search
was of a purse. And fourth, the person consenting to the search
was not the owner of the purse.
The United States Supreme Court has not passed on the constitutionality of a
warrantless search involving this precise array of variables, but it has decided cases
involving some of them. We begin our analysis with a review of
those cases. After extracting what guidance we can from them, we
apply their teaching to the fact pattern we face here.
Houghton, an officer stopped a vehicle for speeding and driving with a
faulty brake light. 526 U.S. at 297. During the stop, the
officer noticed a syringe in the drivers shirt pocket. Id. at 298.
When questioned about the syringe, the driver admitted that he used it to
take illegal drugs. Id. The officer ordered the driver and two
female passengers out of the car and then conducted a probable cause search
of the car for contraband. Id. During the search, the officer
found a purse on the back seat, searched it, and discovered drug paraphernalia
and methamphetamine. Id. Passenger Houghton admitted the purse belonged to her.
Id. In upholding the search of the passengers purse, the United
States Supreme Court found, When there is probable cause to search for contraband
in a car, it is reasonable for police officers ... to examine packages
and containers without showing of individualized probable cause for each one. Id.
at 302. The Court refused to distinguish between a passengers belongings and the
drivers belongings even though the officers suspicion of the drivers criminal conduct was
the basis of the search. Id. at 302-06. The Court reasoned in
part that its decision not to distinguish between containers during a probable cause
search of a vehicle was based upon the scope of warrantless search principles
articulated in United States v. Ross, 456 U.S. 798 (1982). Id. at 302.
Ross had held that where probable cause justified the search of a lawfully
stopped vehicle, it justified the search of every part of the vehicle and
its contents that may conceal the object of the search. 456 U.S.
at 825. Ross determined that [t]he scope of a warrantless search based
on probable cause is no narrowerand no broaderthan the scope of a search
authorized by a warrant supported by probable cause. Id. at 823.
Thus, the Court concluded that the scope of a warrantless search of an
automobile is not defined by the nature of the container, but rather is
defined by the object of the search and the places in which there
is probable cause to believe that it may be found. Id. at
824. For example, probable cause to search for undocumented illegal aliens would
not justify opening a suitcase. Id.
Because this case involves a search of a purse within a home rather
than a vehicle, it is impo
rtant to acknowledge that although both Houghton and
Ross involved vehicle searches, they purported to address searches supported by a warrant
of fixed premises in general and closed containers discovered therein. The Court
in Ross stated:
A lawful search of fixed premises generally extends to the entire area in which the object of the search may be found and is not limited by the possibility that separate acts of entry or opening may be required to complete the search. Thus, a warrant that authorizes an officer to search a home for illegal weapons also provides authority to open closets, chests, drawers, and containers in which the weapons might be found. A warrant to open a footlocker to search for marijuana would also authorize the opening of packages found inside. ... When a legitimate search is under way, and when its purpose and its limits have been precisely defined, nice distinctions between closets, drawers, and containers, in the case of a home, or between glove compartments, upholstered seats, trunks, and wrapped packages, in the case of a vehicle, must give way to the interest in the prompt and efficient completion of the task at hand.
This rule applies to all containers, as indeed we believe it must.
Id. at 822-23 (emphasis added) (footnotes omitted).
See also Houghton, 526 U.S.
at 302 (describing a search warrant of a premises owned by a person
not suspected of a crime: The critical element in a reasonable search is
not that the owner of the property is suspected of a crime but
that there is reasonable cause to believe that the specific things to be
searched for and seized are located on the property to which entry is
sought.) (quoting Zurcher v. Stanford Daily, 436 U.S. 547, 556 (1978)).
From this, we discern that the lawful scope of a search of a vehicle based on probable cause and the lawful scope of a search of a home based on a warrant are identical. Both are defined by the object of the search without placing extra limitations on the opening of containers. Cf. United States v. Melgar, 227 F.3d 1038, 1042 (7th Cir. 2000) (Houghton indicates that the container rule rests on general principles of Fourth Amendment law that do not depend on the special attributes of automobile searches.). But see Houghton, 526 U.S. at 308 (Breyer, J., concurring) ([T]he rule applies only to containers found within automobiles. And does not extend to the search of a person found in that automobile.).
However, unlike a probable cause (or warrant) search, the scope of a consent
search is mea
sured by objective reasonableness. Jimeno, 500 U.S. at 251.
Indeed, Jimeno held that while it may be reasonable to conclude that a
suspects consent to the search of his automobile included authorization to search a
paper bag on the floor, it would be unreasonable to conclude that the
suspects consent authorized the breaking open of a locked briefcase within the trunk
... . Id. at 252. Further, unlike a probable cause (or
warrant) search, a consent search allows for a suspect to limit or restrict
the search as he or she chooses. Id. See also Walter v.
United States, 447 U.S. 649, 657 (1980) (ruling that consent searches are limited
by the terms of authorization).
These principles indicate that the scope of consent is factually sensitive and does
not solely depend on the express object to be searched. In contrast,
probable cause to search a vehicle and a warrant to search a home
authorizes the search of every part of the vehicle or home and closed
ntainers therein that may conceal the object of the search despite the suspects
wishes to place limitations and regardless of the officers belief as to the
type of the container to be searched. Ross, 456 U.S. at 825;
California v. Acevedo, 500 U.S. 565, 572 (1991).
In addition, we note two more distinctions between the probable cause exception and the co nsent exception to the warrant requirement. First, a search validated by consent carries with it additional legal requirements that are not imposed for a search justified by probable cause. For instance, a permissible consensual search requires a voluntary consent, see Schneckloth v. Bustamonte, 412 U.S. 218, 223 (1973), and in third-party consent cases, the individuals authority (actual or apparent) to consent to the search of a non-consenting partys property must be established, see United States v. Matlock, 415 U.S. 164, 171 (1974); Illinois v. Rodriguez, 497 U.S. 177, 188 (1990). A search justified by probable cause, with or without a warrant, does not implicate any of these factors and therefore is less restricted.
Second, the policies that justify probable cause searches (and warrant searches) differ from those supporting consent searches. Searches validated by probable cause require a reasonable ground to suspect that a person has committed or is committing a crime or that a place contains specific items connected with a crime. See Colorado v. Bertine, 479 U.S. 367, 373 (1987) (The standard of probable cause is peculiarly related to criminal investigations, not routine, non criminal procedures .) (quoting South Dakota v. Opperman, 428 U.S. 364, 370 n.5 (1976)). The policies underlying consent searches are entirely different. For example, in Schneckloth, the Court articulated the policy underlying consent searches: [T]he community has a real interest in encouraging consent, for the resulting search may yield necessary evidence for the solution and prosecution of crime, evidence that may insure that a wholly innocent person is not wrongly charged with a criminal offense. 412 U.S. at 243.
In short, a consent search differs from a probable cause search, the degree to which depends largely upon the facts presented to the officer conducting a consent search. Further, a third-party consent search encompasses one additional requirement, the authority to consent, indicating that a probable cause search is less restricted. Accordingly, we find Houghton to be inapplicable to this case. See footnote
The Court of Appeals panel in this case came to an opposite conclusion
Friedel panel. In upholding the search of Krises purse, the
court determined the following:
[A]lthough the standard for measuring the scope of a suspects consent under the Fourth Amendment is that of objective reasonableness, Jimeno, 500 U.S. at 251, the determination of reasonableness [for scope of consent] pertains to the third persons authority over the premises in question and not any particular container within a common area of such premises. See Brown, 691 N.E.2d at 443.
Krise, 718 N.E.2d at 1142. The court went on to hold that it was reasonable for the officers to conclude that Tungate and Krise had mutual use of and joint access to the bathroom, and thus the purse and items therein were under Tungates and Krises common authority. Id. at 1143 (citing Brown, 691 N.E.2d at 443-44). The court also found that because Tungate did not place any explicit limitations on the scope of the officers search and did not restrict the search by excluding personal items belonging to Krise, it was reasonable for the officers to believe that Tungates consent to the home included the search of Krises purse. Id.
To resolve the conflict between
Krise and Friedel, we examine the applicability of
the scope of a consent search to third-party consent cases.
discussed in Part I-B, supra, the scope of a consent search is measured
by objective reasonableness, the express object to be searched, and the suspects imposed
limitations. Thus, the scope of a consent search is factually sensitive and
does not solely depend on the express object to be searched. If
we were to apply the scope of consent rules as outlined in Jimeno
to the facts in this case, arguably one could conclude, as the Court
of Appeals did here, that Tungates consent to search the jointly-occupied home included
the search of Krises purse simply because Tungate did not limit or restrict
the search in any way. Accord Heald v. State, 492 N.E.2d 671,
680 (Ind. 1986) (noting that a defendants consent to the search of a
handbag operated as a consent to search items found within the handbag), rehg
denied. In addition, Tungate gave the officer permission to search the house
for drugs. Since Krises purse is a container where contraband could be
found, then the scope of the search would have been proper.
On the other hand, the objective reasonableness standard allows for the extent of
the suspects consent to vary depending on the circumstances. Indeed, the Supreme
Jimeno found it unreasonable for an officer to believe the consent
to search a trunk would authorize a search of a locked briefcase inside
the trunk. See Jimeno, 500 U.S. at 251-52. A locked briefcase
is comparable to a purse in that both are closed containers that often
hold personal items. Arguably then, it would have been unreasonable for the
officer to believe that Tungates consent to the general search of the home
included the search of a purse that clearly did not belong to him.
Under this approach, application of the scope of consent rules could have
resulted in an unlawful search of Krises purse.
We find it significant that
Jimeno did not contemplate a third-partys authority to
consent to a general search, but rather based the scope of consent analysis
on a suspects own consent to a general search. More specifically, in
Jimeno, a driver and two passengers occupied the vehicle. Id. at 249-50.
The officer obtained only the drivers consent to search the car, and
then discovered a folded brown paper bag holding incriminating evidence on the passenger-side
floorboard. Id. The Court did not engage in a discussion regarding
ownership of the paper bag, and left open the question of whether the
search would have been appropriate under third-party consent principles.
We conclude that the issue is not only whether the purse was within the scope of the consent search, but also whether the third party had actual or apparent authority to consent to the search of the purse. See Friedel, 714 N.E.2d at 1239. Thus, the essential factors in this case are whether Tungate had the authority to consent to the search of the home, whether he had authority to permit the search of personal items belonging to Krise, and whether he consented to the search of Krises purse. As such, we must determine whether Tungate possessed the requisite authority to consent to the search.
United States v. Karo, 468 U.S. 705 (1984) (OConnor, J., concurring) (quoting Matlock,
415 U.S. at 171); United States v. Rodriguez, 888 F.2d 519, 523-25 (7th
Cir. 1989) (requiring separate third-party consent to a general search of a room
and consent to search a briefcase located inside the room); see also United
States v. Block, 590 F.2d 535, 541 (4th Cir. 1978) (holding that although
the mother had authority to consent to search general areas of the home,
this authority did not extend to the interior of her sons footlocker); but
see United States v. Melgar, 227 F.3d 1038, 1041 (7th Cir. 2000) (upholding
a search of a defendants purse where the search resulted from a third-partys
consent to the search of a rented motel room; Generally, consent to search
a space includes consent to search containers within that space where a reasonable
officer would construe the consent to extend to the container.).
This Court has addressed cases involving third-party consent searches of a shared home
and its contents.
However, none of these cases dealt with a third-partys
authority to consent to search something like a purse, i.e., a closed container
that normally holds highly personal items, located within the home.
stated in Part II, supra, the Court of Appeals in State v. Friedel
ruled invalid a warrantless search justified by a third-partys authority to consent to
the search of a purse. 714 N.E.2d at 1240. The court
found unreasonable the officers belief that the drivers general consent to the search
of his car meant that he had authority to consent to the search
of a purse, which by its nature, is not shared by two or
more people. Id. at 1240-41. We agree with this analysis of
third-party authority principles.
Rather than considering a third-partys authority to consent to the general search of the home as all encompassing to the search of every container found inside the home, we hold that the inspection of closed containers that normally hold highly personal items requires the consent of the owner or a third party who has authority actual or apparent to give consent to the search of the container itself.
In reaching this conclusion, we find that the type of container is of
great importance in reviewing third-party consent search cases. Absent one of the
well-delineated exceptions to the warrant requirement, [a] container which can support a reasonable
expectation of privacy may not be searched, even on probable cause, without a
United States v. Jacobsen, 466 U.S. 109, 120 n.17 (1984) (citing
Ross, 456 U.S. at 809-12); see also Smith v. Ohio, 494 U.S. 541
(1990) (per curiam); Horton v. California, 496 U.S. 128, 141 n.11 (1990); United
States v. Place, 462 U.S. 696, 701 (1983); Ex parte Jackson, 96 U.S.
727, 733 (1877); Robles v. State, 510 N.E.2d 660, 664 (Ind. 1987), rehg
denied. An expectation of privacy gives rise to Fourth Amendment protection where
the defendant had an actual or subjective expectation of privacy and the claimed
expectation is one which society recognizes as reasonable. See Bond v. United
States, 529 U.S. 334, 338 (2000); see also State v. Foreman, 662 N.E.2d
929, 933 (Ind. 1996) (citing Blalock v. State, 483 N.E.2d 439, 441 (Ind.
1985) (citing in turn Smith v. Maryland, 442 U.S. 735, 740 (1979), and
Katz v. United States, 389 U.S. 347, 361 (1967) (Harlan, J., concurring)), rehg
The first part of the analysis requires a determination that Krise held an actual, subjective expectation of privacy in the area and personal item searched. In making this determination, we look at the steps that Krise took to preserve her privacy. See Bond, 529 U.S. at 338; Foreman, 662 N.E.2d at 933. Here, the purse was located in the bathroom, a common area of the home where Tungate could gain access to it. It was not located in a closet or inside a dresser drawer where Krise could have expected more privacy. But the bathroom is one of the more private areas of a home. Beyond that, the purse was located inside her home and thus was not accessible to the general public. We do not believe that Krises expectation of privacy in her home and bathroom in general, and her purse in particular, was diminished simply because it was readily accessible to one joint occupant, Tungate. Accord Foreman, 662 N.E.2d at 934 (The fact that other employees or entrusted people have a key to ones office does not defeat that persons expectation of privacy in his or her commercial premises.); cf. Trowbridge, 717 N.E.2d at 144 (discussing privacy interest in a tackle box located outside, on the patio, in a common area of a home).
For the second part of the analysis, we must determine whether Krises expectation of privacy under these circumstances is one which society is prepared to accept as objectively reasonable. See Bond, 529 U.S. at 338; Foreman, 662 N.E.2d at 934. In the probable cause (not consent as here) case, Wyoming v. Houghton, 526 U.S. 295 (1999), three United States Supreme Court justices agreed that a search of a purse involves a serious intrusion on privacy that is tantamount to the intrusion of a search of ones person. Id. at 310 (Stevens, J., dissenting). And Justice Breyer in his concurring opinion acknowledged, Purses are special containers. They are repositories of especially personal items that people generally like to keep with them at all times. Id. at 308 (Breyer, J., concurring). Most recently, the Supreme Court recognized Fourth Amendment privacy interest in an opaque carry-on luggage located in a bus above the seat of its owner. See Bond, 529 U.S. at 338-39.
Both state and federal courts have found that the nature of a container
is significant in dete
rmining whether a third-party possessed the requisite authority to consent
to its search. See United States v. Basinski, 226 F.3d 829, 834
(7th Cir. 2000) (locked briefcase); United States v. Rodriguez, 888 F.2d 525, 524
(7th Cir.1989) (marked briefcase and file box); Welch, 4 F.3d at 764 (passengers
purse); United States v. Salinas-Cano, 959 F.2d 861, 865 (10th Cir. 1992) (closed
but unlocked suitcase); Block, 590 F.2d 535 at 541 (the interior of footlocker);
Owens v. State, 589 A.2d 59, 66-67 (Md.) (visitors luggage), cert. denied, 502
U.S. 973 (1991). But see Melgar, 227 F.2d at 1042 (unmarked purse); United
States v. Sealey, 830 F.2d 1028, 1031 (9th Cir. 1987) (unmarked sealed containers
inside garage); People v. Jenkins, 997 P.2d 1044, 1094 (Cal. 2000) (expectation of
privacy in suitcase but third-party consent to search was nevertheless valid), cert. denied,
__ U.S. __, 121 S. Ct. 1104 (2001). Accordingly, we believe that
society accepts as objectively reasonable that persons have a legitimate expectation of privacy
their purses and other closed containers that normally hold highly personal items.
We do acknowledge that in cases involving the scope of automobile searches justified by probable cause, the United States Supreme Court has warned against constitutionally distinguishing between worthy and unworthy containers. See Houghton, 526 U.S. at 302; Ross, 456 U.S. at 822 (citing Robbins v. California, 453 U.S. 420 (1981) (plurality opinion)). However, Ross further explained,[T]he Fourth Amendment provides protection to the owner of every container that conceals its contents from plain view . . . [and] the protection afforded by the Amendment varies in different settings. 456 U.S. at 822-23 (citation omitted). Moreover, Houghton recognized that individuals have a reduced expectation of privacy with regard to the property that they transport in cars traveling on public highways where the property is subject to police examination and is exposed to traffic accidents that may render all their contents open to public scrutiny. 526 U.S. at 303; see also Acevedo, 500 U.S. at 578 ([T]his Court has explained that automobile searches differ from other searches.). The Supreme Court has suggested that individuals have a higher expectation of privacy in containers and their contents which are located inside the sanctity of their own home where privacy interests are paramount than in their vehicles where privacy interests are diminished. Thus, Fourth Amendment protection of personal effects including containers depends upon where the effects are located (an automobile versus a dwelling), see id, at 580; the officers justification supporting the search (probable cause versus consent), Ross, 456 U.S. at 822-23; and the type of inspection (physical versus visual), see Bond, 529 U.S. at 338-39.
Q: And what was your response to [Officer Ayers]?
A: I told him no, get out of my house, very plain.
Q: Did he ask you more than one time?
A: Yeah probably ten or twelve times in the course of this time. I mean he just continuously asked.
Q: Until the last time, what was your response?
A: Pretty much I dont want you nosing through my stuff period. I didnt want them here and they knew it. They were aware of it. I just got to the point where I was tired of hearing it. It was obvious they wasnt [sic] lea ving. And I said do whatever you gotta do.
Q: And how long did this conversation go on back and forth if you
A: It was a half hour, forty-five minutes, somewhere in there
Q: Now before you finally said yeah go ahead . . . what were the officers d oing?
A: Well pretty much just scattered into the living room and kitchen. They was [sic] looking through whatever they wanted to anyway.
(R. at 251-53.)
The court also cited our decision in
Bruce v. State, 268 Ind. 180,
375 N.E.2d.1042, cert. denied, 439 U.S. 988 (1978). In that case, we
did hold that where the defendant and his wife shared a bedroom, the
wife generally had joint access to all areas within her own bedroom, including
the defendants jewelry box. Bruce, 268 Ind. at 236, 375 N.E.2d at
1072. But as Judge Friedlander recognized in his dissent in this case,
there was ample evidence [in Bruce] that the wife had joint access to
the jewelry box found in the shared bedroom, and therefore, it was reasonable
to conclude that [the defendant] assumed the risk that his wife would permit
a search. Krise, 718 N.E.2d at 1147.