Appeal from the United States District Courtfor the District of MontanaJack D. Shanstrom, District Judge, PresidingArgued and SubmittedMay 21, 1998--Missoula, MontanaFiled June 24, 1998Before: Harry Pregerson, A. Wallace Tashima, andSidney R. Thomas, Circuit Judges.Opinion by Judge Pregerson; Dissent by Judge Thomas
_____________________________COUNSEL Mark S. Werner, Assistant Federal Defender, Billings, Mon-tana, for the defendant-appellant.William Mercer and C. Ed Laws, Assistant United StatesAttorneys, Billings, Montana, for the plaintiff-appellee.
_____________________________OPINION PREGERSON, Circuit Judge:Virgil R. Fultz appeals his conviction for possessing anunregistered firearm in violation of 26 U.S.C. S 5861. Heargues that the district court erred by denying his motion tosuppress part of the stock and part of the barrel of a shotgun.Law enforcement officers found the parts in a closed card-board box that contained Fultz's belongings. The cardboardbox was kept in Tiffany Kassedyne's garage. Kassedyneallowed Fultz to stay at her house after Fultz was evicted fromhis apartment for nonpayment of rent. The officers seized theshotgun parts after Kassedyne allowed them to search thegarage.We must decide whether Fultz had a reasonable expectationof privacy in the closed cardboard box and, if so, whetherKassedyne had authority to authorize the officers to searchFultz's cardboard box. We believe that Fultz did have a rea-sonable expectation of privacy in the cardboard box and thatKassedyne had no authority to consent to its search, evenassuming that she gave such consent. We therefore reverseand remand.BACKGROUNDIn April 1996, Stillwater County law enforcement officerssuspected that Fultz was involved in a store burglary. Theofficers learned that Fultz was residing with Kassedyne. Theofficers went to her house as part of their investigation.The officers arrived at the house and found Kassedyne athome but not Fultz. Kassedyne told the officers that Fultzstayed with her on and off and that she had not seen him forabout twenty-four hours. The officers requested permission tosearch the house, and Kassedyne gave the officers written per-mission for a search.Kassedyne told the officers that Fultz's belongings werepiled up in the garage. She directed the officers to the specificarea in the garage where Fultz stored his belongings. She toldthe officers that only Fultz's belongings were kept in that spe-cific area and that none of her belongings were intermingledwith his. Kassedyne never specifically consented to the searchof Fultz's belongings.Fultz stored his belongings in a closed suitcase, in closed,black plastic bags, and in closed cardboard boxes. Kassedyneallowed Fultz to store his belongings in her garage becauseFultz had been evicted from his apartment about three monthsearlier. During that time, Kassedyne had never looked throughFultz's belongings, nor had Fultz given her permission to doso.During the search of Fultz's belongings, the officersopened up a closed box where they found a sawed-off butt-end of a wooden gun stock and the sawed-off end of a gunbarrel. The officers did not find any of the items stolen duringthe store burglary.The officers arrested Fultz, obtained incriminating state-ments from him, and, with Fultz's help, found the sawed-offshotgun among Fultz's belongings in another closed card-board box in Kassedyne's garage. The officers had failed tofind the sawed-off shotgun in their initial search.Fultz was indicted for possessing an unregistered firearm inviolation of 26 U.S.C. S 5861. Fultz moved to suppress theevidence found as a result of the officers's search. After ahearing, the district court denied Fultz's motion. With theconsent of the Government and pursuant to Rule 11 of theFederal Rules of Criminal Procedure, Fultz entered a condi-tional plea of guilty and was sentenced to eighteen monthswith three years of supervised release. He now appeals thatadverse ruling.1DISCUSSIONWe review de novo whether Fultz had a reasonable expec-tation of privacy in the cardboard boxes stored in the garage.See United States v. Broadhurst, 805 F.2d 849, 851 (9th Cir.1986) (reviewing de novo district court's ruling that defen-dants had standing to invoke Fourth Amendment). We alsoreview de novo whether Kassedyne had authority to consentto a search of Fultz's property. See United States v. Kim, 105F.3d 1579, 1581 (9th Cir.), cert. denied, 118 S. Ct. 353(1997).I.[1] A person has an expectation of privacy in his or her pri-vate, closed containers. See United States v. Welch, 4 F.3d761, 764 (9th Cir. 1993). A person does not forfeit that expec-tation of privacy merely because the container is located in aplace that is not controlled exclusively by the container'sowner. See id. Thus, in Welch, we held that a person retainedher expectations of privacy in her purse even though the pursewas in a trunk of a car over which she and someone else bothhad control. See id. The Government argues that Welch does not govern thiscase because Welch involved a purse rather than a cardboardbox and a person possesses "the highest expectations ofprivacy" in a purse. See id. ("[A ] purse is a type of containerin which a person possesses the highest expectations ofprivacy."). The Government argues that Fultz could not havehad a reasonable expectation of privacy in the cardboardboxes that contained his personal belongings.[2] Although certain types of containers--suitcases, valises,purses, and footlockers, for instance--do command highexpectations of privacy, this does not mean that other types ofcontainers in which people store their personal belongingscommand no expectation of privacy. The Fourth Amendmentprotects people from unreasonable searches; whether a searchis reasonable depends on all the circumstances, not just onwhether a container happens to be a suitcase, valise, purse,footlocker, or cardboard box. See United States v. Montoya deHernandez,
473 U.S. 531, 537
(1985) ("What is reasonabledepends upon all of the circumstances surrounding the search. . . .").[3] In any event, as a practical matter, Fultz's boxes werehis suitcases or valises or footlockers. After all, such contain-ers are used to store personal belongings. Courts recognizethat people have the highest expectations of privacy in thesecontainers not because of what they look like or because ofwhat they cost but presumably because of what they contain.[4] Because homeless people are less likely to own suit-cases, valises, or footlockers, they will often store their mostprivate belongings in cardboard boxes and similar containers.The boxes of homeless people contain the same kinds of per-sonal belongings as the valises, suitcases, and footlockers ofthose who have the money to buy the latter kind of moreexpensive containers.Fultz, for all intents and purposes, was a homeless person.He was evicted from his home. He had one suitcase, whichapparently was insufficient to store all of his personal belong-ings. He therefore had to keep his belongings in cardboardboxes and plastic bags. In these circumstances, Fultz had areasonable expectation that the items stored in the boxeswould remain private.II.The Government contends that even if Fultz had a reason-able expectation of privacy in the cardboard boxes, the shot-gun parts found by the officers were properly seized becauseKassedyne validly consented to a search of the boxes. Tomeet its burden of showing that Kassedyne's consent wasvalid, the Government must show that Kassedyne had eitheractual or apparent authority to consent to the search. SeeWelch, 4 F.3d at 764.A third party has actual authority to consent to a search ofa container if the owner of the container has expressly autho-rized the third party to give consent or if the third party hasmutual use of the container and joint access to or control overthe container. See id. A third party has apparent authority toconsent to a search of a container if the officers who conductthe search reasonably believe that the third party has actualauthority to consent. See id.There is no evidence in the record to suggest that Fultzauthorized Kassedyne to consent to a search of his belong-ings. Thus, we must decide whether Kassedyne had actualauthority under a mutual use and joint control theory orwhether she had apparent authority because the officers rea-sonably believed that she had actual authority to consent tothe search.A.[5] The Government contends that Kassedyne had actualauthority to consent to the search of Fultz's property becauseshe had full access to the garage, thereby negating any expec-tation of privacy that Fultz might have had in his cardboardboxes. But what matters is not whether Kassedyne had accessto the garage, but whether she had mutual use and jointaccess to or control over the boxes.We illustrated this rule in Welch, where we held that a per-son can not give officers permission to search someone else'spurse even if the purse is located in the trunk of a car that bothpersons use and control. See id. We stated that the govern-ment had to "show shared control with respect to the purse aswell as with respect to the vehicle if it [was ] to prevail on amutual use and joint control theory." Id. (emphasis added).Because "there [was] simply nothing in the record demon-strating that McGee had use of, let alone joint access to orshared control over, Welch's purse," we ruled that McGeehad no actual authority to allow the officers to search Welch'spurse. Id.[6] Likewise, there is no evidence in the record in this casedemonstrating that Kassedyne had use of and joint access toor shared control over Fultz's boxes. The arrangementbetween Fultz and Kassedyne is analogous to an examplegiven by Justice O'Connor in Karo: Where a "guest in a pri-vate home has a private container to which the homeownerhas no right of access[, t]he homeowner who permits entryinto his home of such a container effectively surrenders a seg-ment of the privacy of his home to the privacy of the ownerof the container." United States v. Karo,
468 U.S. 705
, 726(1984) (O'Connor, J., concurring). "[T]he homeowner . . .lacks the power to give effective consent to the search of theclosed container." Id. [7] Kassedyne allowed Fultz to bring his closed boxes intoher garage and to store them in a specific part of the garageset aside for him. She did not use the boxes and she did nothave, or even claim to have, a right of access to his boxes. Asa matter of fact, Kassedyne told the officers that the boxes andplastic bags that were segregated in one area of the garagewere Fultz's and not hers. Thus, Kassedyne lacked actualauthority to consent to the search of Fultz's closed containers.B.[8] The Government nevertheless argues that Kassedynehad apparent authority to consent to the search because theofficers reasonably believed that she was authorized to con-sent to the search. The apparent authority doctrine, however,validates a search only where the search would be valid if thefacts believed by the officer were true. Welch, 4 F.3d at 764.[9] The officers in this case were aware that Fultz's boxeswere in a specific area segregated from Kassedyne's belong-ings because Kassedyne told them so. Kassedyne also clearlytold the officers that Fultz's belongings were exclusivelyFultz's and not hers. Thus, the officers were fully aware of theactual facts that establish Kassedyne's lack of authority toconsent to the search of Fultz's closed containers.[10] Apparently, the officers believed that because theboxes were inside the garage, Kassedyne's consent to searchthe garage applied to the boxes. If so, they were mistaken asto the law. But a mistaken belief as to the law, as distin-guished from a mistaken belief as to facts, does not supportthe application of the apparent authority doctrine. See id. at765. Therefore, the apparent authority doctrine does not makethe warrantless search of Fultz's belongings constitutional.CONCLUSIONFultz had a reasonable expectation that his closed card-board boxes in Kassedyne's garage would remain private.Fultz did not share use of, access to, or control over theseboxes with Kassedyne, and Kassedyne informed the officerswho searched Fultz's closed boxes that the boxes were nothers but his. Accordingly, Kassedyne had neither actual norapparent authority to consent to the search of Fultz's belong-ings. The search therefore violated the Fourth Amendment,and any evidence resulting from that search is inadmissible.2Fultz's conviction is therefore REVERSED and RE-MANDED for further proceedings consistent with this opin-ion.
_____________________________THOMAS, Circuit Judge, dissentingI respectfully dissent. Although I agree with the majority'slegal analysis, I do not reach the same conclusion when it isapplied to the facts of this case.Under United States v. Matlock,
415 U.S. 164, 170
(1974),"the consent of one who possesses common authority overpremises or effects is valid as against the absent, nonconsent-ing person with whom that authority is shared.""Commonauthority" means "joint access and control for mostpurposes." Id. at 171 n.7. This concept is essentially a FourthAmendment "assumption of risk" analysis. United States v.Sledge, 650 F.2d 1075, 1080 n.10 (9th Cir. 1981).Cases subsequent to Matlock have emphasized that aconsent-giver with limited access to the searched propertylacks actual authority to consent to a search. See, e.g., UnitedStates v. Warner, 843 F.2d 401, 402 (9th Cir. 1988); UnitedStates v. Impink, 728 F.2d 1228, 1233 (9th Cir. 1984). Othercases have relied on the consent-giver's unlimited access tothe property to bolster their finding of actual authority to con-sent to a search. See, e.g., United States v. Guzman, 852 F.2d1117, 1122 (9th Cir. 1988); United States v. Sealy, 830 F.2d1028, 1031 (9th Cir. 1987).The record of the suppression hearing does not indicate anyrestriction on the property owner's access to the garage anddefendant's personal articles. Sergeant Carraway testified thelessee informed him that "most of his stuff was piled up in apile in the garage" and that when he went to the garage heobserved "a large pile of clothes and garbage bags and boxesand personal belongings. . . ." The lessee testified that thedefendant's property was "[p]retty much on the floor itself,those were his things." The lessee had complete access to thearea, and had stored some of her possessions right above thedefendant's. There was no evidence from any party that thedefendant had made any attempt to establish privacy in hispossessions, aside from closing the top on some of the card-board boxes. No instructions were given the lessee by thedefendant, nor were any restrictions requested. There were nomarkings on the boxes. The defendant's possessions were inplain sight when the garage door was opened, and the lessee'schildren's toys were located nearby.Given that there was no evidence of a limitation on access,these circumstances are closer to Sealy than Warner. Thedefendant assumed the risk that the lessee would consent toa search when he placed his possessions in a pile in hergarage, without attempting to restrict access in any manner.Thus, I believe the district court properly denied the suppres-sion motion. the end
___________________________FOOTNOTES 1 Fultz's conditional plea agreement allowed him to appeal the districtcourt's denial of his motion to suppress.2 At oral argument before this court, Fultz's attorney explained that themotion sought to suppress only the sawed-off parts of the shotgun. But theGovernment conceded that if the sawed-off parts were illegally obtained,then the shotgun itself would have to be suppressed as the "fruit of the poi-sonous tree." Wong Sun v. United States,
371 U.S. 471, 487
-88 (1963).